Will Contests: A Trial Lawyer’s View On How To Avoid Them

January 22, 2015Articles Garden State Gavel Blog

The most typical fact pattern for a will contest involves a wealthy older man’s second or third marriage to a younger wife. The new wife and the children from the first marriage become instant adversaries competing over the testator’s estate. The most effective way to minimize the possibility of a will contest in these circumstances is through estate planning.

By placing some or all of the testator’s assets into a trust, upon death, with income only for the wife and then the principal going to the children upon her death, will contests can be avoided. If the testator is wealthy enough, distributions of corpus to the children can be made during the wife’s lifetime.

Other efforts can be undertaken to avoid will contests. These can include videos of the testator executing the will. However, this can be fraught with peril. If the testator appears frail, fumbles, makes mistakes regarding his estate plan and the identify of his heirs, will contestants will have ready-made evidence to challenge the will. Before any video is created, a great deal of thought and preparation should go into preparing the testator.

A letter from the testator can also be useful if it clearly and cogently explains his thought processes and why he is doing what he is doing.

Finally, it is important that the estate planning attorney maintain careful and detailed notes, including summarizing the substance of meetings and the instructions received from the testator.

In short, there are no bullet proof ways of avoiding will contests, particularly if faced with the fact pattern described above. Dramatic changes in an estate plan, such as disinheriting a child, are also prime grounds for a challenge.

If your estate plan is unusual or involves circumstances that could result in a will contest, it is very important that efforts during the estate planning process be undertaken to minimize the potential for a will contest.