Contesting a Will or Trust

After going through the time and effort of creating an estate plan, you will want to ensure it is legally binding and that your loved ones follow the guidelines you set for them. Unfortunately, your last wishes may be disregarded if an heir or beneficiary contests your will or trust. Although estate contests are not the norm, they are hardly uncommon and can seriously derail an otherwise well-planned estate. This newsletter aims to discuss some of the ways heirs and beneficiaries can contest wills and trusts, and how you can protect against such contests in the future.

One of the more salacious ways to contest an estate plan is to argue that the decedent was unduly influenced when he created and executed the documents. Typically, this “influencer” is a family member who receives a larger share than other beneficiaries. Undue influence, however, requires more than simply having a family member or friend providing suggestions, give advice, or even trying to persuade the testator. Undue influence is more like coercing or forcing (physically or emotionally) the testator into signing a document she otherwise never would have signed. According to the Virginia Supreme Court, this influence must be “sufficient to destroy [the] free agency” of a person. Jarvis v. Tonkin, 238 Va. 115, 120 (1989). If an heir or beneficiary brings a claim of undue influence and is successful, that document—whether trust, will, or both—will be thrown out.

Another common method to contest is to argue that the decedent lacked the necessary capacity to sign the will or trust. This method can be difficult to win, as the plaintiff (person contesting the document) must show that the decedent lacked capacity at the time of signing. The capacity required to sign a will or trust is much lower than in other areas of the law. To have testamentary capacity, the testator must know what he is doing (i.e., signing estate planning documents), generally know what he owns, and know who his heirs are. If, however, the beneficiary or heir who contests is successful, the document will be thrown out.

So how do you protect against a future claim that you were unduly influenced or lacked capacity when you executed your estate plan? First, you can include something called a no-contest or in terrorem clause. This is a provision in a will or trust that states if anyone attempts to question the document in court, the will or trust will treat that person as though they had predeceased you. These clauses disincentivize beneficiaries from filing capacity or influence claims because, if the beneficiary loses, she will receive nothing from the will or trust. Unfortunately, this clause only helps if the person contesting the document is a beneficiary—if the contestant was disinherited, he would have nothing to lose.

Another good step to reduce future family disputes is a simple one: talk to your heirs and beneficiaries ahead of time. Although some contests are about money and getting a bigger slice of pie, many are emotional battles, with contesting beneficiaries who think the will or trust is against the decedent’s wishes. If you are upfront with the plan you made and why, heirs and beneficiaries are less likely to be blindsided at an already emotional time.

The most important method to prevent a contest is to have your documents prepared and executed by an estate planning attorney. Not only will this ensure the documents meet the proper formalities to be accepted as a will or trust, but a good estate planning attorney will add additional provisions that will make contesting the document much more difficult. For example, wills and trusts with self-proving affidavits are very difficult to challenge in court for a lack of capacity. Essentially, in the affidavit the witnesses swear that the testator had capacity, forcing a contesting beneficiary or heir to provide convincing evidence to support a claim of lack of capacity. Additionally, an attorney can take safeguards to protect against a claim of undue influence. Frequently, my older clients will come to meetings with an adult child. The child may be the client’s ride to the meeting, and may be the person who the client wants to serve as their power of attorney and executor. In these cases, I ensure that for part of the meeting I talk to the client by themselves to clarify that the documents express the client’s wishes, and not his son or daughter’s. By taking that extra step and putting some separation between the family member and the testator, it will be more difficult for a contesting heir or beneficiary to argue the testator was unduly influence.

If you are unsure how your documents would withstand a contest, or if you have any questions or concerns about your estate plan, please schedule a document review appointment with your JGB attorney.

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