Anytime someone believes they could get more through intestacy or a prior will, an incentive for a will contest exists. When creating your own will, it is important to be aware of situations that make will contests more likely.
A will contest occurs when the validity of a will gets challenged in probate court. The goal of the contest is to prevent the probate court from carrying out the estate plan laid out in the will.
1. Disinheritance of close family members.
Close family members are often the logical heirs of an estate. However, there may be reasons to disinherit a surviving spouse or child. It may be based on a family feud or because of nontraditional relationships that are the result of divorce, remarriage, or cohabitation. The disinherited family member has nothing to lose from contesting the will and taking through intestacy instead.
2. Unequal treatment of children.
A will may treat children unequally. It may be that some children are in more need of financial assistance or more irresponsible. One child may be given financial power over the inheritance of a sibling that is not well liked. Whatever the reason, the spurned child may contest the will in an appeal to fairness of the situation.
3. Sudden or significant change in asset distributions.
Sudden or significant changes, especially immediately prior to death, can be disruptive to the old beneficiaries. They may be taking less than anticipated or believe those benefiting engaged in illegal or unethical means to get their new windfall. In such situations, the aggrieved beneficiaries may seek to show that the testator lacked the capacity to change the will or was the subject of undue influence.
4. Imposition of excessive restrictions on bequests.
A testator can normally impose restrictions on heirs. There may be restrictions on what property is received, how or when it is received, or how it can be spent. Some impositions can feel onerous to those who have to live under them, especially if there is no desire or ability to fulfill the restriction.
5. Elderly or disabled testator.
To write a valid will, the testator must have mental capacity to control their own finances and be free of undue influence. Although age, illness, or disability does not automatically eliminate capacity, it can leave the door open to a challenge that there was a lack of capacity at the time the will was created and signed.
6. Unusual behavior by the testator.
A testator who acts unusual could be an indication of a lack of capacity or undue influence. In some cases, it may be the sign of an undiagnosed mental illness that impairs their ability to act rationally. Even where the conduct has a rational reason, such behavior can lead to a challenge.
For each of these reasons, there may be perfectly legitimate reasons. However, these should act as red flags to the testator that their will might not be honored. There are steps that can be taken to discourage or defeat a challenge from an unhappy family member or a nosy court.
One of the best ways is to use an estate planning attorney who can draft a will with a potential challenge in mind. For severe cases, the attorney can take extraordinary steps to show the testator’s mental state and reasoning at the time. That way, if a challenge occurs, the attorney can provide documentation and evidence necessary to uphold the will and defeat the challenge. Absent this evidence, the will challenge can devolve into bickering family making all sorts of inferences from anything that supports their position.