Can Your Will be Contested? Strategies For a Non-Contestable Will

Will Contested Non-Contested

Few situations in life are as stressful as the death of a family member. Understandably, emotions can run high surrounding the distribution of wealth from the estate of the deceased. That’s why it is important to employ strategies to minimize the possibility of a contested will. 

Probate laws clearly define who can contest a will. The only parties who can legally contest a will are interested parties that include family members, creditors, beneficiaries and any entity that can prove they have a right to a property claim. 

It is important to note that probate laws vary by state. Common reasons to contest a will are listed below.

  • Mental incapacity
  • Lack of credible witnesses
  • The exertion of undue influence by a particular party
  • Fraud
  • A more current will
  • Unclear language in the will

Understanding the reasons wills are contested makes it easier to identify strategies to prevent a contested will. The strategies listed here provide excellent preventative measures for ensuring that your wishes are followed. 

Add a No-Contest Clause to Your Will

One of the most effective strategies recommended by experienced legal experts is to add a no-contest clause into your will. One of the main reasons that this type of clause works so well is because it states that any party that challenges the will’s legitimacy will be completely cut out of the will and won’t receive anything. 

This strategy inherently requires that you leave something that the heirs will deem valuable so that they will fear losing it by contesting the will. While this might not provide the perfect answer, it is considered to be one of the best ways to prevent a legal challenge to your will. 

Never Accept an Heir’s Help Drafting the Will

By keeping beneficiaries at arm’s length during the drafting of your will, you reduce the likelihood that other family members will claim that undue influence was exerted. With that goal in mind, it makes sense to leave family members out of any meetings with your attorney related to will preparation. 

Review Your Will on a Regular Basis

As tempting as it might be to simply throw your will into a file cabinet and never look at it again, it is important to remember that circumstances change over time. What this means is that you might want to adjust your will to reflect changes in family dynamics. Families evolve and relationships can change resulting in a desire to update your will. 

It is a common practice to review your will annually with your attorney. By showing an ongoing interest in your will, it may prevent a future legal contest. 

Prove Competency Using a Trusted Attorney or Doctor

A common legal challenge used to contest a will is to claim that the person signing the will was not mentally competent. One way to avoid this type of future possibility is to have a trusted attorney or medical doctor document your competency after giving you some tests to evaluate your mental capabilities at the time the will is signed. 

Consider Choosing a Living Trust Instead of a Will

Many people bypass a will altogether, opting for a living trust instead. This type of strategy provides assurances that your wishes will be honored without any likelihood that there will be unwanted legal entanglements after your death.

The way a living trust works is that you place your assets into a trust throughout your lifetime. While you can access those assets as needed, they are legally owned by the trust. When you pass, the assets are distributed to your beneficiaries based on the terms of the trust. 

One of the benefits of this type of legal structure is that the trust is not scrutinized in court and remains private from all parties. If a family member is not listed as a beneficiary, they are not allowed to view the details of the trust. This strategy represents an excellent vehicle for preventing legal challenges. 

Ensure that Your Will Is Properly Prepared

As a legal document, there is always the possibility that a will can be contested based on a technical reason related to the proper drafting of the actual document. That’s why it is always a wise move to turn this important task over to legal professionals. 

As tempting as it can be to simply use a cookie cutter will from the internet, this can cause many problems in the future if you don’t fully understand the law surrounding wills. It is not much of a stretch to imagine this type of will is easy to challenge in court. 

Record the Signing of Your Will

An excellent tool to prevent mental capacity challenges and legal arguments related to coercion is to record the signing of your will for all to see. While it might sound unusual, this strategy works. It is difficult to go to court and question mental capacity or free will when the event is recorded for all to see.

Summary

Few things are more precious than the idea of having our final wishes honored when we pass away. The prospect of legal entanglements is not a pleasant one. That’s why it makes sense to use the strategies mentioned above. 

Sources:

https://www.legalzoom.com/articles/how-to-prevent-your-family-from-contesting-your-will

https://www.thebalance.com/tips-for-avoiding-a-will-contest-3505204

https://www.elderlawanswers.com/preventing-a-will-contest-6627

https://www.findlaw.com/estate/wills/who-can-challenge-a-will-.html

Belinda Tucker
A Baby Boomer herself, Belinda has a passion for investigating topics that are important to aging adults and then making any confusing concepts clear. Belinda's professional career included serving as a Corporate Recruiter, Mortgage Executive and Real Estate Salesperson. She writes for BoomerBuyerGuides.com on a variety of financial topics.