Worried That Your Heirs May Contest Your Will? Take Steps In Advance To Prevent It

Some families simply don't get along very well. If that describes your family, you probably anticipate some fighting between your heirs when you're gone. If you want to protect your will from what you see as an inevitable challenge, there are several different steps you can take. Consider these.

1.) Use a no-contest clause.

No-contest clauses aren't always enforceable, but they can be effective when they are. They take an "all or nothing approach" to the issue–if one of your heirs doesn't accept what the will gives him or her and begins a legal challenge, he or she loses everything if the challenge fails. That stipulation could make all but the most determined of your heirs think twice about contesting. Just make sure that such clauses are supported in your state before you rely on one.

2.) Create serial wills.

Serial wills are essentially similar wills that are drafted over a period of years. You can use the chance to update your will over the years, but make sure that each will shows essentially the same intentions. For example, if you plan to leave one child more money than the others, each will should reflect that, even if you add new details about the disposition of personal items.

If the final will is challenged, each previous will has to be challenged as well, which is both expensive and difficult. The existence of serial wills also demonstrates to the judge hearing the challenge that you had the opportunity to change the terms of your will and each time decided on the same plan. That reinforces the idea that the documents truly reflect your wishes.

3.) Provide evidence of your mental capacity.

Wills are often contested based on the mental capacity of the deceased at the time the will was drafted. There are several tactics you can take to negate any allegations that you weren't clear-headed:

  • Ask your primary care physician for a letter attesting to your clarity of mind and have it attached to your final documents.
  • Have your will witnessed by two or three trusted friends (who are not your beneficiaries) that would be willing to testify in court, if necessary, to your mental state.
  • Include a letter with your estate documents that explains your reasoning for any unusual provisions of your will. For example, if you leave the bulk of your estate to an heir that's disabled, your will can explain that you feel that your other children are capable of caring for themselves.

A contested will can lead to a lot of unintended heartache. For more ways to prevent your will from being challenged, discuss the situation with an estate planning attorney like those at Seiler & Parker PC.