Insight on Estate Planning - August/September 2019: Protect your will from legal challenges

Adler Pollock & Sheehan P.C.
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Adler Pollock & Sheehan P.C.You’ve probably seen it in the movies or on TV hundreds of times: A close-knit family gathers for the reading of the will of a wealthy patriarch or matriarch. When the terms are revealed, someone benefits at the expense of someone else, causing a ruckus. It may even come to blows. This “bad blood” continues to boil between estranged family members, who won’t even speak to one another.

Unfortunately, a comparable scenario can play out in real life as well if you don’t make proper provisions. However, with some planning, you can avoid disputes, or at least minimize the chances of your will being contested by your loved ones.

Start at the beginning

Before you (and your spouse, if married) set the table for your will, which is the centerpiece of any comprehensive estate plan, discuss estate matters with close family members who likely will be affected. This may include children, siblings, adult grandchildren and possibly others. Present an outline regarding the disposition of your assets and other important aspects.

This doesn’t mean you should be specific, but doing so will provide a basic overview of your estate. Consider the input of other family members; don’t just pay lip service to their feedback. In fact, they may raise issues that you hadn’t taken into account.

This meeting — which may require several sessions — may head off potential problems and better prepare your heirs. It certainly avoids the kind of “shockers” often depicted on screen.

While it’s usually best to bring issues out into the open, you don’t have to provide all of the specifics. For instance, there’s no need to publicize restrictions that may be placed on a spendthrift son or daughter. That benefits no one.

Means of protection

Although there are no absolute guarantees, consider the following methods for bulletproofing your will from a legal challenge:

Draft a no-contest clause. Also called an “in terrorem clause,” this language provides that, if any person in your will challenges it, he or she is excluded from your estate. It’s the definitive way of thwarting contests to a will.

This puts the onus squarely on the beneficiary. If he or she asserts that the estate isn’t divided equitably, the beneficiary risks receiving nothing. Be aware that, in some states, this clause may be subject to certain exceptions. Contact your estate planning advisor for specifics.

Invite witnesses. Usually, little thought is given concerning witnesses to the will. It’s often just whoever happens to be around. It might even be staffers at the attorney’s office where the will is being drawn up.

But it’s far better to use witnesses who know you well, such as close friends or business associates. They can convincingly state that you were of sound mind when you made out the will. Also, choose witnesses who are in good health, preferably younger than you are and easily traceable. Finally, you may add extra witnesses for greater protection.

Obtain a physician’s note. A note from a physician about health status is recommended for someone extremely ill or elderly. For instance, it can state that you have the requisite mental capacity to make estate planning decisions and thus will be useful in negating legal challenges.

It’s important to obtain the physician’s note close to the time that the will is signed. A note from several years ago will carry little weight in court.

Draft a revocable living trust. This trust type is often viewed as a vehicle that discourages will contests. The assets transferred to the trust are governed by the terms of the trust, not your will, giving you more flexibility.

For starters, assets in a living trust are exempted from the probate process. The trust is the owner of the assets — not you. Conversely, a will is subject to public inspection and must go through probate. In most states, the disposition of a living trust cannot be contested.

Furthermore, you retain some control over the assets during your lifetime, since you can change beneficiaries or even revoke the trust entirely. Generally, a living trust is adopted to complement your will.

Last but not least

After your will is drafted, don’t make the mistake of putting it in a drawer or safe where you may forget about it. Review it periodically with your attorney. By fine-tuning the will, you improve the likelihood that it’ll deter a legal challenge and, if necessary, prevail in court.

Sidebar: Let’s go to the videotape

Thanks to technology, there’s yet another way to shield a will from legal challenges: Record it. Depending on the situation, a video recording may serve as the sole will or a supplement to a written one.

Videotape offers the obvious benefit of showing the mental condition of the testator. Demeanor, tone, inflection and other traits are accurately reflected. Also, the beneficiaries might benefit emotionally by having this final message viewed, while the testator can be more confident that his or her intentions will be met.

But a video recording isn’t foolproof. The strategy could backfire if the testator shows signs of being incompetent or unduly influenced by others. Plus, the video may be tampered or altered if it’s not carefully stored. Finally, state laws may have an impact, so consult with your attorney.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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