When you create your will as part of your estate plan, you are making sure your last wishes will be carried out. All that careful planning and thought could be for naught, though, if someone successfully contests your will. Making sure your will can't be contested will ensure your final intentions are fulfilled.
Who Can Contest?
Contesting wills can only be done by your spouse, children, or people included in your will or codicil (or a previous will or codicil). To contest a will, the person must file a contest during the probate process (the court procedure that enacts a will).
There must be a valid legal question about the will for a contest to be considered. A person cannot simply challenge a will because they disagree with it, were left out of it, or are hurt or angry about the will's contents.
The following are reasons to contest a will:
A problem with the execution of the will is one of the grounds to contest a will. If your will is not signed, witnessed, or completed properly according to the laws of your state, it could be invalid. Because of this, it is essential that you either have an estate planning attorney prepare the will or that you carefully follow your state's rules if you complete one yourself.
Another common reason for a contested will is if you have a serious problem with your mental capacity (commonly called “sound mind") when you sign the will. To sign a will, you only need to understand your assets, who your heirs and beneficiaries are, and the effect of the will—it is not required that you be 100% without mental issues. If you are worried that there could be any question about your mental capacity, you should talk to your attorney, who may advise you to videotape the signing or to obtain medical documentation.
Fraud and Undue Influence
Another reason for contesting a will is the testator's having been defrauded into signing it; for example, if someone told you that you were signing some other document but gave you the will instead.
Undue influence is another grounds for contest and happens when someone has influence or control over the person signing the will; for example, a live-in caretaker who exerts control over everything the testator does. If you are concerned that there could be claims of undue influence, talk to an attorney who can help you prepare evidence to the contrary.
Precautions You Can Take to Avoid a Contest
To prevent a contest to your will, make sure your will is executed properly and that you take all the precautions your attorney suggests to avoid any chance of a contest.
It is also a good idea to talk to your heirs about what is in your will and why. Discussing this during your lifetime can prevent any nasty surprises and gives your heirs the chance to talk things over with you and understand your reasoning. It may also be helpful to express loving thoughts and emotions to your heirs so they don't feel that the will means you don't love them.
Note that while you can disinherit any of your children, grandchildren, or other relatives, most states will not allow you to completely write your spouse out of your will. If you do so, the court will grant a right of election to the spouse to take a certain percentage of your estate, so it is best to plan for this yourself.
Another Option: Living Trusts
To prevent a will contest, you may want to avoid having a will altogether. A revocable living trust allows you to place all of your assets into a trust during your lifetime. You continue to use and spend your assets and money, but they are technically owned by the trust. Upon your death, the assets are distributed to your trust beneficiaries according to the terms of the trust.
A trust does not pass through the court for the probate process and cannot be contested in most cases. Revocable living trusts remain private, so if someone is not listed in it, they are not privy to the details of it. If you place all of your assets into a trust you have little need for a will, although it is common to prepare a pour-over will that moves any forgotten assets into the trust at your death.
Taking a few precautions will help ensure that your will can't be contested. Knowing that your final wishes will be honored can provide you with great peace of mind.