MSN’s recent article entitled “Counterattack: Tips for Thwarting a Will Contest” says sophisticated planning by the wealthy elite doesn’t preclude disappointed family members from trying to change the results. Putting an in terrorem provision (no-contest clause) to a will or revocable trust is a traditional strategy to discourage attacks. This clause can cause the forfeiture of an inheritance, if someone objects to being excluded from a will.
However, because no-contest clauses are unenforceable in some states, you might ask an experienced estate planning attorney about other strategies like these:
Require mediation for disputes. Some states permit mediation, arbitration, or alternative dispute resolution (ADR) to resolve issues of interpretation or administration. A will could require a potential contestant to use an alternative to litigation.
Use a litigation holdback fund. Instead of forfeiting his or her total interest by filing a lawsuit, the beneficiary’s interest could be escrowed and its access restricted during a contest. The interest when eventually paid to the beneficiary would then be reduced by the expenses of litigation.
Address common grounds for contests in advance. You can anticipate a contest based on common attacks:
- The testator was not of sound mind. Have the testator undergo an examination by two physicians for capacity issues. Provide the physicians’ signed statements as schedules to the will.
- Forgery or manipulation. Include a statement of testator intent in the will about the estate plan.
- Invalid execution. For charges of undue influence, or lack of valid execution, execute the will during filming of a video. Explain the dispositive scheme and name the beneficiaries. It is also important to get a signed statement from witnesses and the notary and have a third-party certify the video’s authenticity.
- Later will or trust. Add a statement in a video about the documents being the most recent versions and that they haven’t been revoked.
Reference: MSN (Nov. 9, 2022) “Counterattack: Tips for Thwarting a Will Contest”