Writing a will is difficult enough. No one wants to think about their loved ones contesting their will after they're gone. This is why it's essential to do everything you can now to avoid challenges to your will and estate plans.
From choosing the right executor of a will to considering a no-contest clause, here are some tips from experts to help avoid causing any unneeded strife after your passing, and to ensure that your wishes are preserved.
What Is Contesting a Will?
Contesting a will simply means that a person that is included in the will—or that has not been named in the will—objects to its contents.
This may be someone who feels they have been inadvertently left out entirely or a person who thinks that the will does not reflect what the will writer would have wanted them to inherit. Some who contest wills may even allege that the will was written under duress or even unduly influenced by others.
Shann M. Chaudhry, Esq., Attorney at Law PLLC, says that the result of contesting a will could mean setting aside the entire will, replacing it with a previous version, or just getting rid of it entirely. "Typically, this is done in probate by litigators that practice in the area of contested probate and fiduciary litigation. It is highly complex and can have substantial tax consequences," he says.
Chaudhry also warns that contesting a will has time limits, among other issues.
"The decision to contest a will is rather complex, time-sensitive, and requires that proper steps be taken to avoid forfeiture," he says. "The contestant of the will should hire counsel to help make those determinations."
Tip One: Record the Signing of the Will
Frequently, contesting a will is done by a person alleging that the testator, or the writer of the will, was not of sound mind and was coerced into signing it. To disprove such an allegation, Steven J. J. Weisman, a probate lawyer for Margolis and Bloom in Boston, Massachusetts, recommends videotaping the signing of the will.
"Videotaping the signing of the will and having the attorney go over every aspect of the will with the testator on tape can help indicate that the will was done purposefully, and no one was left out by inadvertence," he says.
Tip Two: Include a No Contest Clause
Somita Basu, editor-in-chief for the California Lawyers Association, suggests that including a no-contest clause in your will is an excellent deterrent to probate litigation over the will's terms. "The clause must be carefully crafted to comply with state law but can be very powerful if properly drafted and included in the will," she says.
A no-contest clause, formerly known as an in terrorem clause, according to Weisman, suggests that if the challenger of the will is unsuccessful in court, that person forfeits the right to inherit anything. Weisman says, "Obviously, in order for an in terrorem clause to be effective, the person who might challenge the will has to receive something in the will because, as Bob Dylan said, 'If you ain't got nothing, you got nothing to lose.'"
Tip Three: Follow the Rules
This may seem like an obvious suggestion, but the best way to ensure a successful will that remains uncontested is to follow the state's laws and requirements for signing your will. Hire a well-recommended estate attorney and familiarize yourself with all the necessary rules and regulations surrounding wills. Ask your attorney for their personal experiences surrounding contested wills.
Andrew Chen, founder of Hack Your Wealth, says, "Ultimately, the best way to prevent contested wills is to make sure the will is executed according to proper state law formalities. Usually, this means the will is in writing, signed in the simultaneous co-presence of two witnesses who also themselves contemporaneously sign as witnesses, and ideally is notarized."
Planning for a time when you will no longer be alive is never pleasant. But you want to leave a will for your loved ones that doesn't cause any further grief. Start with these tips to help safeguard against the contesting of your will.