Probably one of the most easily avoided types of lawsuit is the will contest. While it may be an attempt to get more assets than other family members, many times it is as much about the principle of equal treatment. Unless there is some type of undue influence that can be proven, chances are that the deceased had specific reasons for the differences. Regardless of the reasons, here are some tips on estate planning techniques that can help avoid a will contest.
One of the easiest ways to avoid a will contest is to make sure that the will is valid according to the requirements of Washington law. In Washington, the will must be signed by the testator (the person whose will it is) or if he or she cannot sign for a legitimate reason, someone else may sign for the testator in his or her presence. The will must be signed and witnessed by two witnesses. Of course, some of these elements can be contested as well, but at least complying with all of these requirements creates some presumption of validity.
One of the most powerful ways to prevent a will contest is to add a no-contest clause (also called an “in terroreum” clause) to your will. This basically says that anyone who files a will contest will lose any interest he or she has in the estate if the suit is unsuccessful. The burden of proof is on the person filing the will contest and if the will is upheld, the person who filed the will contest may also be charged with costs and attorney’s fees involved in the suit. Depending on the relative value of the assets being contested, it may not be worth it to the disgruntled heir.
Raising a question about mental capacity is a very common challenge in a will contest. Wills that are executed or changed when a person is gravely ill are often challenged by someone who disagrees with the distributions made, especially those that are made in a hospital or hospice. One way to defend such a challenge is to have the person’s physician examine them for physical and mental infirmities just before the will is executed. The attorney who is present may also want to ask and record answers to questions that will indicate capacity.
Another technique to prevent a will contest is to include a letter of intent with the will. While an explanation of the decisions made in the will may not satisfy those who feel slighted, it does remove some of the incentive for filing a suit to contest it. This letter can serve many purposes other than explaining the reasons. It can also help deflect any questions regarding competence as long as it doesn’t conflict with the provisions of the will.
Of course, there are many other reasons why a will might be contested. But there are also many more techniques that can be used to prevent a will contest. The best strategy to avoid the emotional and financial stress that a will contest can cause is to consult an estate planning attorney and discuss your situation to take as many preventive measures as possible.