Almost nothing can be as divisive as a will contest. Old wounds get reopened. The family’s dirty laundry can be put on public display. The mental acuity of a family leader can be called into question. Assets can be depleted through courtroom battles. It’s a painful process. That is why so many legal experts follow a simple old rule: “An ounce of prevention is worth more than a pound of cure.” While some will contests are inevitable, given the assets at stake and the personalities involved, here are four strategies to avoid a will contest.
Particularly if your will results in disproportionate distributions among siblings and others, or if it involves a substantial charitable bequest, consider including a letter of explanation as a side document. Include the letter along with the will, but keep it separate. Such a letter can do two things. First, it can offer cogent reasons why your estate is being handled in a particular way. For example, if you have earlier made gifts to a child and you want those gifts to be considered as part of that child’s distribution, say so. The child may still resent receiving a smaller share, but the rationale will be clear. Second, a letter can provide sound evidence of your competence in arranging your affairs.
As most Texans know, a no-contest clause essentially provides that if a beneficiary unsuccessfully contests the will, that contestant forfeits his or her interest under the will. There is, of course, one catch: If you have cut someone out of your will altogether, or if you have provided them with an insignificant bequest—say $100—then there is little incentive on their part to refrain from attacking the will. A no-contest cause works best where the contestant has something significant to lose.
If there is ever a scenario that can prompt a will contest, it’s when “Daddy” or “Mama” makes a significant change to a will that is (a) detrimental to one or more family members and (b) while the testator was in a hospital or hospice setting. Sometimes such situations cannot be avoided, but one should recognize that making last minute changes favoring one party and disfavoring another raises issues of undue influence and competence.
Somewhat related to strategy #3, if you anticipate a contest based upon lack of competence or undue influence, carefully document the signing ceremony. Nothing looks more suspicious than a freshly drafted will that suddenly, to the surprise of virtually everyone in the family, appears out of thin air following the death of the testator. The attorney assisting with the execution should make careful notes and he or she should ask the testator questions—in the presence of multiple witnesses—that seek to show that the testator was entirely competent at the time of the signing and that the testator was not under anyone’s influence to do so. Consider hiring an independent physician to examine the testator and offer his or her opinion as to competence. It will cost some money, of course, but considerably less than it costs to defend a will contest.
The attorneys at Romano & Sumner have more than 20 years of combined experience providing expert legal assistance to clients in all sorts of estate and trust matters, including will contests. Our estate planning attorneys have handled contentious will contests and the experience that we have gained in the courtroom can be valuable in avoiding unnecessary and expensive estate litigation.
At Romano & Sumner, we pride ourselves not only on our professionalism but also upon our client service. We know that each situation is unique. We return phone calls within one business day. Will contest and estate planning attorneys keep our clients well informed as to the status of their case. We complete the work within the allotted time frame. Call us at 281–242–0995 or complete our online contact form.
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