The death or incapacity of a family member is often a stressful and emotional occasion for other family members. When emotions run high in times of stress, people can and do react in angry, defensive or unpredictable ways.
A family member who is disappointed not to have been put in charge of things, or who will receive less of an inheritance than he or she feels is “fair” or “right,” may get mad and try to cause a power struggle. Or that family member may try to cause estate planning documents to be thrown out, alleging either that the family member who signed them was not mentally competent, or that another family member exercised undue influence which caused the person to sign documents that did not reflect his or her real intentions.
More generally, a person who feels scorned – particularly in a stressful family situation – is often prepared to do “whatever it takes” to right what he or she perceives as serious wrongs.
Will contests, and contested guardianship and conservatorship proceedings, are very expensive and time-consuming. The underlying divisiveness can break up a family to an extent it may never fully recover from. Here are some steps you can take to best minimize the risk that your estate plan will be contested.
Do it right, with a lawyer’s help. There are serious risks associated with “do it yourself” estate planning. There are a number of potential grounds for causing estate planning documents to be thrown out in court. And it’s not just wills and trusts that are at risk, but also powers of attorney and other “life planning” documents. Even documents signed by a competent person acting of his or her own free will can be thrown out if they are not properly executed or witnessed, or include language that is incorrect, incomplete, ambiguous or imprecise. That risk is just not worth taking for what you will “save” by doing it yourself. See a competent estate planning or elder law attorney, whose malpractice insurance is on the hook if things get messed up, and get it done right.
Prove your competency. If you have any reason to expect a potential challenge to your competency, take steps to safeguard against that risk. Ask your lawyer to question you at some length about your planning decisions, and to either record or take careful notes of the discussion. Ask your doctor, or a social worker or mental health professional, to test you for competency.
Remove the appearance of undue influence. It may make perfect sense to you to leave a disproportionate share of your estate to the daughter who has been taking care of you for the past few years, and to put her in charge of everything. But your other children may think she is overreaching, and that she badgered you into thinking you “owed her.” Avoid any impropriety by coming alone to appointments with your lawyer (if you need a ride, someone can drop you off and pick you up), and make sure that no other family members are present when you sign documents. Also, discuss your concerns with your lawyer and have him or her take safeguards as with competency.
Have your document signing videotaped. Your lawyer can easily arrange this through a court reporter. Videotaping allows family members, and if necessary a judge, to see that you are signing freely and that you know and understand what you are signing. You can be asked questions as part of the signing process that are directed toward showing your competency and the lack of any undue influence. Your own testimony, showing that you are alert and aware, and that the decisions reflected in your documents are the product of your thoughtful consideration of what those documents can provide, can be the most powerful evidence to combat a claim that you “weren’t really with it” when you signed your documents, or that someone was “putting words in your mouth.”
Explain your decisions to your family. If family members understand the reasoning behind your decisions, they are less likely to contest your will, trust, or powers of attorney. Talk to them about it, if you reasonably can. And be prepared to listen openly and fairly. If it turns out that you didn’t have all the information that you would want to weigh in making your estate planning decisions, it’s best to have it before you make final decisions. If you’re afraid that having those discussions might cause more harm that good, then state the reasons for the choices reflected in your formal documents or in an accompanying letter.
Include a “no contest” clause and other protective language. “No contest” clauses generally provide that if someone contests your will or trust, that person does not receive any inheritance at all. They can also be used to disqualify someone from serving in a fiduciary capacity, for example as executor or trustee. However, know that these clauses are often challenged in court and don’t always hold up. To maximize the chance of yours having its intended effect, it may be strategically wiser to leave something, rather than nothing, to an adult child or other family member who has fallen out of your favor. A person who has something to lose by challenging your estate plan is less likely to take that risk. A person to whom you have left nothing has something to gain and nothing to lose by mounting a challenge, and is for that reason more likely to proceed.
Use a living trust. Whenever a will is admitted to probate, the executor must send out a notice to all heirs informing them of their right to contest the will, and that they have six months in which to decide whether they want to contest. If a will contest is filed, the estate can’t be closed and distributed until it has been resolved. Those circumstances give someone interested in contesting a will quite a bit of bargaining leverage to get what they want. While a living trust is not impossible to successfully contest, it’s a lot more difficult than a will. People who don’t think they have a very good chance of winning, or of setting up roadblocks until they get their way, are less likely to start the fight in the first place.
Dent-Coulson Elder Law is dedicated to providing families in the St. Louis area with their Elder Law needs. Our practice areas include Asset Preservation Planning, Veterans Benefits, Medicaid Eligibility, Alzheimer’s Planning, Special Needs Planning, Estate Planning and more. We understand the financial challenges you may face as you and your loved ones grow older. At Dent-Coulson Elder Law, our clients’ well-being is our number one priority. For immediate help, call (877)995-6876 or Contact Us and we will get in touch as soon as possible.