Death and grieving can bring out the worst in any family. When combined with ongoing family conflicts, sacred family heirlooms, or a significantly large estate, disagreements in handling a will can quickly arise.
Where the terms or intent of a will are ambiguous, or the circumstances of the will drafting leave reason to believe that undue influence or fraud might have occurred, families can quickly become wrapped up in a nightmare of prolonged disputes. The validity of a will can come into question, which brings with it many other questions – like who should inherit what in a family estate.
While you cannot control the emotions of your family members, or their propensity to engage in conflict, you can try to minimize will contests through the defensive drafting and preparation of a will. When you are on the lookout for common errors and issues with wills during the drafting process, you can avoid extensive fighting and contests down the road.
One of the primary bases for contesting a will is the argument that the maker of the will was not competent at the time of signing. In order for a will to hold up in court, it must have been signed by someone with a “sound mind.” Although this rarely comes up, an individual who is under the age of eighteen does not have sound mind, or the legal status to sign a will because he or she is a minor.
Assuming the signer of the will is above the age of eighteen, sound mind is achieved by showing that the person:
This standard is not overly challenging. It basically requires an individual to have sufficient cognition to understand his or her surroundings and what is going on. It does not require perfect memory or perfect cognitive ability and individuals with issues such as beginning dementia or memory loss can certainly be of sufficient “sound mind” to draft a will.
That said, if you are working with a family member who is clearly incapacitated, allowing him or her to draft a will while in an incapacitated state is a red flag for future will contests.
The next best thing that authors of a will and their family members can do to have a will upheld in court is to make sure that the terms of the will are clear and consistent. Wills do not have to be complicated. The will should be drafted in a fairly straightforward manner, so that there is no guesswork as to which assets are intended for which individual.
If you feel that you have a potentially complicated arrangement to set forth in your will and you are concerned that it may be misunderstood or misconstrued by beneficiaries at a later date, seek out the assistance of an attorney to help you review and clarify the language for your will.
In addition to setting forward beneficiaries in a straightforward manner, a will should also clearly state:
While executors can be appointed if necessary, it is generally preferable to have one designated in a will.
Another easy way to end up in a will contest is to have a will drafted under circumstances of secrecy or confusion. Where beneficiaries to a will have reason to believe that the will may have been drafted as the result of undue influence or fraud, they can bring a claim to contest the will. Drafting a will in a transparent fashion helps to keep this from occurring.
For instance, if you initially draft a will to include all of your children but later decide to revise your will secretly to inexplicably remove half of your children from your inheritance – this is likely to draw a good amount of scrutiny and mistrust when the will is being evaluated. If you have reasons for needing to change beneficiaries to your will, or what a certain individual will inherit, try to make those reasons explicit and well-known in order to avoid claims for fraud down the road.
It is also important to make sure that you have appropriate witnesses at your will signing. In Texas, unless you are completing your will on your own, by hand, you must have two witnesses present for the signing of your will. These witnesses must be over the age of 14.
They must also be disinterested individuals. Disinterested witnesses are witnesses who have nothing to gain from the will itself. So they typically cannot be beneficiaries who would anticipate inheriting under the will.
There are many places online these days where individuals can find legal forms and self-help information purporting to make it easy for any person to draft a will. In the simplest of cases, these types of legal forms may be helpful and keep lawyer fees down. But in most instances it pays to have a qualified lawyer review the substance of your will and assist in the drafting.
Experienced wills and trusts attorneys know what kind of issues are likely to lead to will contests down the road. They can help you avoid the common pitfalls that many fall into that cause family tension and discord down the road. They can also advise you on how to structure your will to both reflect your intent and maintain the utmost clarity.
At Romano & Sumner, LLC, our wills and trusts attorneys have years of experience working with Texas residents to draft strong and legally enforceable wills. We pride ourselves on serving Sugar Land, Houston, and the surrounding areas. For more information, contact us online or at 281-242-0995.
Romano & Sumner, PLLC