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How to make it less likely that anyone will contest your will

It's the Law

Posted: July 4, 2008 12:28 a.m.
Updated: September 4, 2008 5:03 a.m.
 
Emotions can run high at the death of a family member. If a family member is unhappy with the amount received (or didn’t receive) under a will, he or she may contest the will.

Will contests can drag out for years, keeping all the heirs from getting what they are entitled to. It may be impossible to prevent relatives from fighting over your will entirely, but there are steps you can take to try to minimize squabbles and ensure your intentions are carried out.

Your will can be contested if a family member believes you did not have the requisite mental capacity to execute the will, someone exerted undue influence over you, someone committed fraud, or the will was not executed properly.

The following are some steps that may make a will contest less likely to succeed.

n Make sure your will is properly executed — The best way to do this is to have an experienced elder law or estate planning attorney assist you in drafting and executing the will. Wills need to be signed and witnessed — usually by two independent witnesses.

n Use no-contest clause — One of the most effective ways of preventing a challenge to your will is to include a no-contest clause in the will. A no-contest clause states that if an heir challenges the will and loses, then he or she will get nothing.

n Prove competency — One common way of challenging a will is to argue the deceased family member was not mentally competent at the time he or she signed the will. You can avoid this by making sure the attorney drafting the will tests you for competency, which could involve seeing a doctor (a neurologist) or answering a series of questions.

n Videotape the will signing — A videotape of the will signing allows your family members and the court to see you are freely signing the will and makes it more difficult to argue that you did not have the requisite mental capacity to agree to the will.

n Remove the appearance of undue influence — Another common method of challenging a will is to argue someone exerted undue influence over the deceased family member, For example, if you are planning on leaving everything to your daughter who is also your primary caregiver, your other children may argue your daughter took advantage of her position to influence you.

To avoid the appearance of undue influence, do not involve in the drafting of your will any family members who are inheriting under it. Family members should not be present when you discuss the will with your attorney or when you sign it.

To be totally safe, family members shouldn’t even drive you to the attorney.
Seeking legal counsel is important to discuss what works best for you.

Gina MacDonald is a lawyer whose practice is concentrated in the areas of estate planning, probate, family and elder law. Her column represents her own views, and not necessarily those of The Signal. “It’s the Law” appears Fridays and rotates between members of the Santa Clarita Valley Bar Association. Visit www.SCVBar.org.

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