Steps to Reduce the Likelihood of a Will Contest
Anyone who plans for their families’ and loved ones’ futures hopes their heirs and others won’t fight. (At least, we certainly want that to be the case.) Sometimes, though, death brings conflict. Children may feel they should have been given a better share. Business partners may feel their interests weren’t duly considered. These conflicts can sometimes result in will contests, and in contests about how the estate assets are being handled.
Reasons to invalidate a will
Generally, the grounds for contesting a will are the following:
- Lack of testamentary capacity. The testator didn’t understand who his/her natural heirs were and the nature of his/her assets and liabilities. For example, if a will is executed by someone who has dementia, the dementia can be used to show a lack of testamentary capacity.
- Failure to comply with formalities. Wills must be prepared and executed in accordance with the Tennessee Execution of Wills Act. For example, wills usually require that there be two witnesses.
- Undue influence. Someone who asserts that the will was prepared through the use of undue influence must show that:
- The will didn’t follow reasonable expectations. For example, an heir was disinherited or given a reduced share or someone who wasn’t an heir was chosen as a beneficiary.
- The testator had a confidential relationship or was dependent on an influencer – often to the exclusion of other heirs.
- The testator or heir benefited from this confidential relationship.
- The testator was susceptible to undue influence because of ill health or other circumstances.
- There was a later will or codicil. Testators, the people who prepare wills, may change their mind and prepare a later will. They may also amend their will through the use of a legal codicil. Heirs (those normally entitled to estate assets when there is no will) and beneficiaries (people or entities designated in the will) may assert that the will being presented for probate is not the correct version.
Practical suggestions for avoiding litigation when someone dies
The tips vary depending on what type of will contest might be asserted. Experienced estate planning lawyers will usually review the following ideas if there is a possibility the heirs or beneficiaries don’t get along:
- Meet with a lawyer. Anyone who wants to plan for the day they pass should meet with an experienced attorney alone. In addition to considering all aspects of estate planning, the act of meeting with a lawyer helps show that that the testator wasn’t unduly influenced. Skilled estate planning attorneys review prior legal documents, understand the formal requirements, and help draft the right documents for your desires and needs.
- Meet with a doctor. A family physician or geriatrics doctor can help confirm someone’s physical, emotional, and cognitive well-being. The doctor should prepare a report of the visit. The visit should be near to the time the will or legal documents are drafted and signed.
- Explain why one person may be getting a share that is different than expected. Wealthy testators, for example, may decide that one child is able to support himself/herself quite well while another child has special needs. An experienced estate planning attorney can explain whether the explanation should be a conversation with the affected heirs or whether the explanation should be set forth in the legal documents.
- Conduct a video. A visual video contemporaneous with the will’s preparation and execution can also help show the testator had the necessary testamentary capacity.
- Consider using other legal documents. Some property can be distributed without going through probate – if it is properly titled. Homes that are jointly owned with a spouse, or insurance proceeds that name specific beneficiaries, generally do not need to go through probate. Documents such as trusts can also avoid the need for probate.
A provision in a will (a no-contest clause) that provides that if the will is contested, the person filing the contest will be disinherited entirely may have validity.
At Shepherd & Long, PC our skilled estate planning attorneys first work to understand your financial situation and your family needs. We explore your options and craft documents that help meet your desires, maximize your estate assets, and minimize the risk of litigation. To speak with experienced Maryville wills and trust lawyers, please phone 865-982-8060 or fill out our contact form. We’re ready to give you peace of mind. We proudly serve clients throughout East Tennessee.