We often read about high-profile cases of contested wills but we aren’t aware of the many other battles that go on within a family until a settlement is reached, according to FT Advisor in “When and how clients can contest a will?”
What’s behind this uptick in inheritance disputes?
One answer has to do with the increased complexity of families. Having a second or third family is no longer as unusual as it once was. The division of assets when there are children and stepchildren create more chances for someone to feel wronged. A second reason is that the value of individual property overall has increased. Relatively modest estates with a home that’s now worth half a million dollars means there’s more to fight over.
Add to that a generally more litigious society and you have an increase in estate battles.
There are two general areas of estate battles: one concerns wanting a greater portion of an estate, and the second centers on whether the will is valid. The second can bring allegations of undue influence, lack of capacity to create a will, and even forgery.
Challenging the validity of a will is difficult since the person who made the will has passed and they can’t speak for themselves. However, there are certain presumptions in favor of upholding a will that helps the courts. For one thing, the will must be in writing and there must be two people witnessing the signing.
Taking the position that the person was incapacitated and not legally able to create a will is another way that wills are challenged. The older the person is when the will was created, the more likely this is. One way to address this in advance is to have a medical opinion documenting the person’s mental capacity.
While it is impossible to make any will completely immune to any challenges, there are a few things that can be done to make it less likely that the will is contested.
Write a letter or have a video made that speaks to the family, explaining what your wishes are for your property and for the family. This is not legally binding but could be used to show that you were thinking clearly when you had your estate plan done.
Communicate openly and with great transparency to all members of the family so that there are no surprises. If everyone knows what you have in mind and has an opportunity to voice their opinions, there may be less potential for fighting.
An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances and conforms to the laws of your state of residence.
Reference: FT Adviser (July 3, 2019) “When and how clients can contest a will?”
