Will Contests: Why They Happen and How to Prevent Them

Why Do Will Contests Happen?

Will contests typically arise from disputes among family members or beneficiaries. The most common reasons include claims that the testator lacked mental capacity, was unduly influenced, or that the will was not properly signed and witnessed.

Another frequent cause is a perceived unfairness in the distribution of assets. When one person is left out or receives less than expected, they may challenge the will, hoping to receive a larger share.

Contests can also happen when there are multiple versions of a will, or when a later will revokes an earlier one, and someone stands to benefit from the earlier version.

• Lack of testamentary capacity: the person did not understand what they were doing.
• Undue influence: someone pressured or manipulated the testator.
• Improper execution: the will did not meet legal formalities.
• Fraud or forgery: the will is not genuine.

Lack of Testamentary Capacity

To make a valid will, you must be of sound mind. This means you understand the nature of a will, know your assets, and recognize who your natural heirs are. If you are suffering from dementia, severe mental illness, or are under the influence of drugs, a court may find you lacked capacity.

Capacity is assessed at the time the will is signed. A diagnosis of a condition like Alzheimer's does not automatically invalidate a will if you had lucid moments. However, if the contestant can show that you did not understand the document, the will can be overturned.

To protect yourself, have a doctor evaluate you close to the signing date and document that you have capacity. This can serve as strong evidence if your will is challenged.

Undue Influence and Fraud

Undue influence occurs when someone uses pressure, threats, or manipulation to control your decisions. This often happens when a caregiver or a trusted relative isolates you and then benefits from your will. Courts look for suspicious circumstances, such as a sudden change in the will that favors the influencer.

Fraud involves deception, like lying about what the will says or forging your signature. If a contestant can prove that you were tricked into signing a document you did not understand, the will is invalid.

To minimize these risks, keep your will in a secure place and do not let anyone else control the process. Discuss your wishes with family members openly, and consider having a lawyer draft the will to ensure it reflects your true intentions.

Proper Execution and Witnesses

Every state has specific rules for signing a will. Typically, you must sign in the presence of at least two witnesses who also sign, and you must declare that the document is your will. State rules vary, but most require witnesses to be adults and not beneficiaries.

If the will is not signed correctly, it can be invalidated. For example, if a witness is not present when you sign, or if you do not state that it is your will, the document may be rejected.

To prevent execution issues, use a lawyer who knows your state's requirements. They will ensure that the signing ceremony is done properly, and they can also include a self-proving affidavit, which makes the will easier to admit to probate without requiring witnesses to testify.

How to Prevent a Will Contest

The best way to prevent a contest is to communicate with your family. Explain your decisions while you are alive, so there are no surprises. This can reduce resentment and misunderstandings.

Consider using a no-contest clause, which disinherits anyone who challenges the will without good cause. However, these clauses are not enforceable in all states, and they can backfire if the challenge has merit.

Another strategy is to leave a small legacy to someone who might otherwise contest, with a statement that they are receiving this in lieu of any further claim. This can discourage challenges.

Finally, keep your estate plan updated. If you have a major life event like a marriage, divorce, or birth of a child, revise your will. An outdated will can lead to disputes.

• Have a doctor evaluate your capacity before signing.
• Use a lawyer to draft and execute your will.
• Talk to your family about your wishes.
• Consider a no-contest clause (where valid).
• Keep your will updated after major life changes.

What to Do If a Contest Occurs

If your will is contested, the court will hold a hearing. The burden of proof is usually on the contestant, meaning they must prove that the will is invalid. However, in some cases, the burden shifts to the proponents of the will, especially if there are suspicious circumstances.

Your executor or beneficiaries will need to defend the will. This can be expensive and time-consuming. Having a well-drafted will with clear evidence of capacity and proper execution can make it easier to defend.

If you anticipate a challenge, you can set up a trust instead of a will, which often avoids probate and reduces the chance of a contest. Trusts are private and can be more difficult to challenge.