For most people, reducing the likelihood of litigation is a primary factor in the decision to create a Last Will and Testament. If your wishes are clearly stated in your Will, there shouldn’t be anything for your heirs to fight over after you are gone, right? What happens though if someone contests the Will you create? Let’s discuss what you can do to prevent your beneficiaries from contesting your Will.
What Is a Will Contest?
After your death, your estate will likely need to go through the legal process known as “probate.” One of the many functions of probate is authenticating the decedent’s Last Will and Testament. Typically, your Executor submits an original copy of your Will to the appropriate court to get probate started. If no one challenges the validity of the Will submitted to the court, the probate process will continue unhindered. On the other hand, if someone does challenge the validity of the Will, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful, the Will is declared invalid and the state intestate succession laws will be used to probate your estate. If the Will contest is unsuccessful, the probate process continues using the terms of your Will to distribute estate assets.
In all states, the contestant in a Will contest must allege (and ultimately prove) legal grounds on which the Will can be declared invalid. In California, those grounds include:
- Lack of testamentary capacity
- Undue influence
Preventing a Will Contest
While there is no way to guarantee that your Will won’t be contested, there are a few things you can do that will dramatically reduce the likelihood of that happening, such as:
- Work with an experienced estate planning attorney. Given the ease with which you can find legal forms on the internet, it can be tempting to go the DIY route when creating your Will. DIY legal documents, however, greatly increase the odds of a challenge because they are rife with ambiguities and errors and lack professional advice and oversight. Your attorney also serves as another disinterested witness who can testify to your state of mind in the event “lack of testamentary capacity” is alleged in a Will contest.
- Avoid probate. Incorporating probate avoidance tools and strategies into your estate plan decreases the likelihood of a Will contest because assets gifted in your Will must go through probate whereas non-probate assets bypass probate altogether. Converting assets to non-probate assets when possible, therefore, only makes sense. Common examples of non-probate assets include trust assets, proceeds of a life insurance policy, certain types of jointly held property, and funds held in a “payable on death (POD)” account.
- Visit your physician. Claiming that the Testator lacked “testamentary capacity” is a common basis for a Will contest. A good tactic for heading off such a claim is to get a complete physical done within days of executing your Will.
- Leave behind a Letter of Instruction. This is a letter that is written by you explaining anything not already covered elsewhere in your estate plan. You can use this option to explain controversial bequests that might lead to a Will contest.
- Include a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will. State laws vary with regard to how they approach no contest clauses. California does enforce no contest clauses; however, under Probate Code section 21311, a no contest clause is only enforceable
- A direct contest that is brought without probable cause. A direct contest is one that alleges invalidity on the grounds of forgery, lack of due execution, lack of competence, menace, duress, fraud, undue influence, revocation in certain circumstances, and disqualification of the beneficiary as having witnessed the will or being a prohibited transferee.
- A pleading to challenge a transfer of property on the grounds that it was not the transferor’s property at the time of the transfer. A no contest clause shall only be enforced under this paragraph if the no contest clause expressly provides for that application.
- The filing of a creditor’s claim or prosecution of an action based on it. A no contest clause shall only be enforced under this paragraph if the no contest clause expressly provides for that application.
Contact a Roseville Estate Planning Lawyer
Please download our FREE estate planning checklist. If you have additional questions or concerns about estate planning, contact us at the Northern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.
Latest posts by Timothy P. Murphy (see all)
- Use Trust Protectors for Added Protection and Flexibility - October 13, 2019
- How Will You Obtain the Care You Need? - October 11, 2019
- Income Tax Basis in Estate Planning - October 9, 2019