In my last post, I talked about how Wills may be challenged. In this post I will suggest some things that you can do to avoid a potential Will contest. No one who goes to the effort and expense of preparing a Will wants the document to cause trouble within the family. In fact, for most people, the very reason they are doing a Will is so that their family will have written instruction for the distribution of their estate. I often hear from clients that they have peace of mind after signing their Will. So, what can you and your attorney do to reduce the risks of a Will challenge?
1. Disinheriting heirs: you are absolutely free to omit an adult child from your Will: it’s your estate and you can give it to whomever you wish. But, make sure the Will specifically states you have done this intentionally and leaving out that child or other heir was not a mistake. Attorneys differ on whether to include a reason why the child has been left out. My opinion is that no reason should be stated in the Will itself. For example, if the Will states that the reason a child has been omitted is because they have been “taken care of during lifetime,” the child may challenge that wording or try and prove that they were not actually “taken care of” by the parent. Thus, that would mean there was a mistake when the Will was written.

My preference is to have the parent write a separate letter explaining why they have not given anything to that child. If the dispute ever ends up in Court, the letter would establish that the child was not omitted by mistake.

2. Undue Influence Prevention: Preventing a Will challenge based on undue influence is the responsibility of both the attorney and the client. First, the attorney should not allow anyone other than the client to attend the meetings. Allowing a child or other beneficiary to participate in meetings with the client could be opening the courthouse door to any other person who feels they were treated unfairly in the Will. It is sometimes difficult for a client to understand that the reason for prohibiting anyone else to attend meetings is to protect the client’s final wishes. It is not an indictment of the child. It is the attorney’s job to make clear that they have one client, and that client is the person signing the Will.

3. Copies of the Will: I strongly advise clients to not give out copies of their Will. If the Will is changed down the road, it is better that there be no copies of the prior Will in existence. If a child has an expectation of an inheritance, and a later Will reduces or eliminates that inheritance, an objection to the new Will is almost a certainty.
Ninety-nine percent of all Wills are probated without any issues arising. However, if you anticipate there may be a challenge to your Will, tell your attorney about your concerns. Both of you can then put in place measurers to prevent a successful challenge.

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