A will can give you a voice even after death, helping to ensure ownership of your money and property passes to your intended beneficiaries. If you have minor or incapacitated children, a properly drafted will allows you to leave them an inheritance while protecting them and the assets you leave them. A will also gives you the power to choose someone you trust to oversee your estate and ensure your final wishes are carried out.
All things considered, creating a will enables you to continue taking care of your loved ones after you’re gone. Unfortunately, though, these legal documents aren’t always as ironclad as their creators hope they’ll be. If a person’s beneficiaries and other family members don’t agree with the terms of their will or feel that something surrounding the signing of the will wasn’t quite right, they can potentially challenge probate of the will in court.
When probate of a will is contested, it often leaves people waiting longer than necessary to receive their inheritances and causes serious tension among family members. Court costs and other expenses involved in the process can also detract from beneficiaries’ inheritances. A contest may even result in a will being invalidated altogether.
Five Common Issues That May Cause a Will to Be Challenged
Certain issues can make a will far more likely to be contested in probate court. Understanding these issues and how to prevent them is key to ensuring your final wishes are properly fulfilled Below are five of the most common red flags that a will might be challenged.
1) Lack of Testamentary Capacity
Lack of testamentary capacity is one of the most common claims people use to challenge probate of a will. When a person lacks testamentary capacity, it means the will maker wasn’t sufficiently cognizant of what he or she was doing at the time the will was signed. For a will to be legally binding, its creator, or testator, must:
- Be aware that they’re signing a document which disposes of their property at their death
- Understand that the will controls who receives their property when they die
- Comprehend the nature and value of their assets
- Know the people who would typically be expected to inherit their assets
- Be capable of rationally deciding how their assets will be distributed
Several factors can bring a testator’s mental and cognitive capacity into question. One reason to contest a will is If the testator was taking medication known to interfere with mental clarity at the time the will was signed. A few examples of these types of medications are opioid painkillers, sedatives, and antipsychotics.
Another potentially serious red flag is if a testator was under a diagnosis of dementia at the time they signed their will. Even though dementia sufferers can have good and bad days, especially in the early stages, challengers may argue that the testator was mentally impaired when the will was signed. If a testator suffers from a mental disorder, such as
schizophrenia, bipolar disorder, or depression, that can also be grounds for a claim that the testator lacks testamentary capacity.
2) Undue Influence
Another red flag that a will may be contested in probate court is the belief that its creator was unfairly pressured or manipulated when determining their will beneficiaries and inheritance shares. This is a common issue among the elderly. It also happens all too often to people who are grieving or at vulnerable life stages, such as when they’ve recently lost a close loved one or are isolated. Notably, it can be common among testators who depend on caregivers for their basic needs.
Unfortunately, there are plenty of people in the world willing to
prey on the vulnerable for their own gain. Sadly, even close family members can be culprits. Certain developments like the following may be warning signs of undue influence.
- Suddenly granting a caregiver a large inheritance
- Unexpectedly creating a new will shortly after meeting a new romantic partner
- Excluding close family members from a will without explanation
- A person controlling or preventing family members’ access to a testator
These are typical signs that someone may be influencing a testator to change their will. In cases like these will contests are often based on the circumstances under which the will was created or altered and who participated in the process, more so than what was granted or changed. Proving undue influence typically requires establishing by a preponderance of the evidence that (1) the influencer influenced the testator, (2) the influencer’s influence overpowered the testator’s free will at the time the will was signed, and (3) as a result, the testator signed a will they otherwise wouldn’t have made.
3) Improper Execution
Improper execution is another common reason for contesting the probate of a will. Strict and sometimes complex laws apply to creating and finalizing wills, and those laws vary by state. If they’re not followed properly, a will can be left open to challenges and even invalidation.
Several issues fall into this category. Typical oversights include missing or incorrect witness signatures and failing to have a will properly notarized. Another common mistake that can lead to problems is allowing beneficiaries to sign a will as witnesses. This can cause a beneficiary to receive less than the testator intended, or to lose their inheritance entirely. Though details like these may seem minor, they can lead to major setbacks in the probate process.
4) Suspicious Timing
Timing can likewise bring about concerns regarding a will. This is particularly true when a person creates or changes a will shortly before their death or at a time when they’re more vulnerable. A will signed during a medical crisis, immediately before entering hospice care, or shortly after a traumatic event, for example, can be a significant red flag.
Questionable timing alone may not be enough to convince a probate judge or jury to render a will invalid. However, it can raise suspicions. It can be used as evidence, coupled with other red flags, to challenge a will.
5) Unnatural Disposition
Another warning sign is an unnatural disposition. This refers to when a will distributes assets in a way that doesn’t fall in line with what might reasonably be expected from a testator. For example, an unnatural disposition would include suddenly disinheriting a close family member, such as a spouse or a child, with no logical explanation.
An unnatural disposition may also involve leaving a significant inheritance to someone whom the testator has only known a short period of time or willing the majority of an estate to a caregiver instead of distributing it among close family members. It’s not altogether uncommon for testators to disinherit certain family or to leave inheritances to unexpected beneficiaries. Still, the circumstances under which it happens can cause suspicion.
Additional Reasons for Challenging a Will
While the previously mentioned red flags are common reasons for contesting a will, they’re not the only warning signs to watch out for. Several other issues may come into play as well.
- Vague Language - Ambiguous language may lead to disputes over a testator’s true intentions and cause a will to be contested.
- Missing Assets - Leaving assets out of a will can also raise suspicions, especially if those assets are extremely valuable.
- Contradicting Prior Estate Plans - If a will contradicts a testator’s other estate planning documents or contains significant unexplained changes compared to previous versions of their will, these things may be cause for concern.
- Suspicion of Forgery or Alteration - If there’s reason to believe a testator’s signature or parts of a will were forged or altered, the document can be challenged.
People have been known to make major changes to their wills at times. Using vague language and omitting assets may simply be innocent mistakes. In many cases, though, these issues can be reasons for families and the legal system to question a will’s validity. When they occur close in time or together with other red flags mentioned, they can certainly be grounds for contesting a will.
Tips for Preventing a Will From Being Contested
There are several measures you can take to protect your final wishes and reduce the risk of your will being contested after you pass away. One of the most important and effective ways is working with an attorney throughout the entire estate planning process. An attorney can help ensure your will complies with the applicable laws of your state and provide valuable guidance and assistance.
Particularly, an estate planning and
probate attorney in Texas can help ensure your wishes are properly carried out and your loved ones receive the inheritances you leave them. They can also assist your family if probate issues arise when the time comes to distribute your assets. Additional measures may also make your will less likely to be challenged.
Plan Ahead
Regardless of your circumstances, it’s important to address estate planning and will creation as early as possible. You never know when an accident or illness may leave you incapable of handling your own affairs or lacking the testamentary capacity to make a will. Taking care of these important measures before negative circumstances occur is crucial.
Make Regular Updates
Updating your will regularly is equally essential. Doing so can help establish a pattern of consistency and eliminate the need for sudden major changes. Both of those factors can reduce the chances of drawing scrutiny during probate. They’ll also go a long way toward ensuring your loved ones get their fair shares of your estate.
Provide Clear Explanations
Another way to reduce the risks of your will being contested is to provide clear explanations for any changes you make to it. You don’t necessarily have to defend every estate planning decision you make, but explaining significant modifications can help. Those might include disinheriting a loved one, giving one beneficiary more assets than others, and granting significant inheritances to people outside of your immediate family.
Be Open With Your Beneficiaries
Talking to your beneficiaries about their inheritances can be uncomfortable. Many people completely avoid discussing this difficult subject. But that can leave a lot of unanswered questions and unpleasant surprises for your beneficiaries after you’re gone. It’s best to talk to your loved ones about your plans before the time comes to execute them so they have an idea of what to expect.
What Makes a Will Uncontestable?
Like many people, you may be wondering if there’s anything you can do to make your will uncontestable. In truth, there is always some risk that the people closest to you will challenge your will when the time comes to distribute your assets. However, there are things you can do to minimize that risk and make contesting your will far more difficult.
Adding A No-Contest Clause
Adding a no-contest clause, also called an in terrorem clause, in your will can discourage beneficiaries from challenging your will in probate. These clauses provide consequences for challenging your wishes, such as stating that anyone who contests the will and loses forfeits their inheritance.
Providing Proof of Testamentary Capacity
Medical or psychological evaluations, documentation from your attorney, and testimony from witnesses to the signing of your will can all serve as proof of your testamentary capacity. They can also serve as proof that you weren’t coerced into including certain beneficiaries or making changes to your will.
Keeping Consistent Records
Keeping consistent records of your estate planning process and the changes you make over time can also make your will less vulnerable to challenges. These records help establish that you put thought into your testamentary decisions and made them of your own volition.
It bears repeating that working with an attorney is critical in this respect. Having knowledgeable legal counsel to support you will reduce the risk of leaving details open for litigation. It will also ensure you cover all the important bases to reduce the chances of someone successfully contesting your wishes. Furthermore, it’ll safeguard you and your family against fraud if any wrongdoers try to make unauthorized changes to your will.
Protecting Your Will and Your Family’s Future
A will can help safeguard your assets, ensure your true wishes are carried out after you pass away, and secure your family’s financial future. Unfortunately, these documents can’t always provide total protection. If your will is contested, the process may keep your family’s inheritances tied up in probate, eat into the assets you intended to benefit them, and cause significant tension among your loved ones.
Doing everything you can to prevent challenges to your will after you’re gone can help reduce those risks. Though nothing can definitively make a will uncontestable, it’s certainly possible to minimize the chances of someone successfully keeping your testamentary wishes from being carried out. Working with an attorney throughout the process is key to ensuring you have a well-drafted will to protect your estate and your loved ones.
Disclaimer:
Ruelas Andino Law, PLLC makes no claims as to the accuracy of the information contained within the external links in this blog article nor does it endorse any of the businesses contained in the links. Information contained in this blog is for informational purposes only and may not be construed as legal advice.
