After considerable thought, you’ve decided how you want your estate to be distributed. You are ready to write your will. But will your family accept your decisions? A successful challenge to your will can alter your estate plan in ways you do not want. An unsuccessful challenge can drain your estate leaving less for your beneficiaries. Below, we discuss who can challenge your will, what grounds they may assert, and ways to prevent or at least discourage a will contest. The people who have the right to challenge your will are typically divided into two categories, Heirs At Law and Beneficiaries.
Heirs At Law
Every state has laws of intestacy. These laws determine who inherits your property when you pass away if you do not leave a will or the court invalidates your will. These people are your heirs at law. The laws of intestacy leave your property to the people who are most closely related to you, starting with your surviving spouse and children. If you have neither, your property will pass to the next closest surviving relatives. The order in which relatives are entitled to inherit may vary from state to state. Other people who may stand to inherit your property under the laws of intestacy if you have no spouse or children include:
Aunts and uncles
Nephews and nieces
Next of kin
Beneficiaries, people to whom you leave a gift in your will, may also be able to challenge your will. They may be dissatisfied with their share or believe that you were unduly influenced to provide less for them.
Other people who may be able to challenge your will
A few people other than your heirs at law and your beneficiaries may be able to challenge your will. For example, if you live in a state where dower (a wife’s interest in her husband’s property on his death) and curtesy (a husband’s interest in his wife’s property on her death) are recognized, an ex-spouse may have an interest in your property. If your will has terms that contradict another legal document like a buy-sell agreement regarding your business, your business partners or others involved with the business may be able to challenge your will or seek a judgment from the court that the terms of the agreement override the language in the will. Creditors may be able to challenge a will in some jurisdictions.
Tips to avoid a challenge
1) Use a No-Contest Clause
A no-contest clause says that if beneficiaries challenge the will, they will not receive the gift left to them in the will. A no-contest clause may be an effective deterrent to a will contest. However, they are not enforced in some jurisdictions.
2) Get a mental capacity evaluation
If you believe that your mental capacity may be challenged because you disinherited a child, gave a large portion of your wealth to a caregiver, or for some other reason, you may be able to establish your mental capacity and frame of mind during your lifetime. You can meet with your doctor or a specialist to have a mental capacity evaluation performed and leave a copy of the results with your estate planning documents to show you were mentally competent at the time.
3) Do not procrastinate
Many people put off estate planning until they are seriously ill or advanced in age. However, if you wait to complete your estate plan until this point, people may have stronger footing to question your mental capacity and motivations. Try to be proactive about establishing an estate plan while you are in relatively good health and unquestionably competent.
4) Regularly update your estate plan
An estate plan should not be a one-and-done task. Your life will change and your will should change along with it. If you regularly update your estate plan, it will be easier to prove that your will expressed your wishes, you were aware of changes in your life, and it was your choice to change the will. Plan on reviewing your will every few years and consider updating your will if any of the following occur:
· You get married or divorced.
· You have a child.
· The executor you chose has died or become incapacitated.
· Your relationship with your executor or beneficiaries has changed.
· You moved to another state or country.
· Your property or its value has significantly changed.
Also, remember to keep your will in a safe location and tell trusted individuals where to find it.