Emotions can run high after a loved one dies, particularly if they left behind items
with sentimental value. The last thing you want is for your family to start fighting
after you pass away.
Nip It…
How can you prevent your heirs from fighting over items with sentimental value? A
statement in a will or trust that basically says “tangible personal property should be
divided as my heirs see fit” does little to address this problem. A better way is to put
specific items – things you believe certain family members may want – in writing, and
then discuss your decisions in advance with your family.
What if you believe a former spouse, one of your children, or the spouse of one of your
children will cause trouble no matter what you specify in your will? In this case, you
might consider a no contest clause. Such a clause says that if a beneficiary contests the
will’s provisions or its validity, their entire inheritance is forfeited. This can make the risk
of challenging your will outweigh the potential benefit of doing so. Simultaneously,
however, you might want to leave the heir in question enough of an inheritance to
motivate them not to challenge the will.
When a Challenge to Your Will is Inevitable
Challenging a will isn’t easy. That’s especially true about a valid document that was
drafted by an experienced attorney and duly executed according to state law. Even with
less-than-perfect documents, successfully overcoming a will can prove difficult.
However, it does happen.
Challenging a will requires a formal process called a will contest, or caveat. Caveat
proceedings are most common where more than one document exists and the
beneficiaries disagree as to which is the “true will.” Contests can arise with holographic
or handwritten wills, confusing written statements, uncertain verbal statements,
surprising or grossly unfair provisions, apparent deathbed revisions, or questions about
the circumstances under which a will was made.
As a general rule, if your beneficiaries wish to start a caveat process, they must
successfully allege one of the following:
Lack of Testamentary Capacity — The testator (the deceased) was not of sound mind
when the will was made, did not know the value of their estate, or otherwise did not
understand the consequences and effects of the will.
Invalid Execution — The will was not executed according to the laws of your state.
This argument is also raised when there are questions about the capacity and/or
signatures of either the testator or the witnesses. The court will typically presume that
the will was properly executed, so the person challenging the will must overcome that
presumption, usually with the help of their attorney.
Negligent Execution — A clerk or attorney made a mistake when drafting or executing
the will, thereby accidentally contradicting your intentions.
Undue Influence — The caveator claims you were coerced, wrongfully pressured, or
subjected to duress when making the will.
Fraud — The will is fraudulent or a forgery. Caveators may also argue that your
intentions were colored by fraud. For example, let’s say you disinherit your nephew
because your niece falsely accuses him of stealing your money.
A Second Will — The caveator believes there is another document that supplements or
supersedes the purported will.
If you have questions about protecting assets of sentimental value or how the caveat
process works, our office is here to help.
