Though will contest actions are rarely successful, they can be
financially burdensome to the estate and non-contesting
beneficiaries, and emotionally taxing for a decedent's
family. A will can be invalidated based on undue influence or
duress exerted on the decedent, fraud, a decedent's lack of
capacity at the time the will is executed, or failure to follow the
legal rules applicable to wills. Following are 10 strategies for
defeating a will contest action or cutting it short in the early
stages of litigation.
- CONSIDER PASSING ASSETS PURSUANT TO A LIVING
TRUST – Contesting a trust is much more
difficult than contesting a will. Will contests are a somewhat
common occurrence, while trust contests are not. Will contests are
also frequently taken on a contingency fee basis, meaning that the
contestant has nothing to lose. Often times, weakly founded actions
are filed in hope of settlement. Trust actions are less commonly
taken on a contingency fee basis, meaning that the chances of
prevailing must be significant enough for the contestant to fund
the litigation. Finally, the right to information regarding a trust
is limited to its beneficiaries and a trust need not be filed with
the court. Thus, the privacy advantage over probate brings less
attention to the disposition of the decedent's assets
– and less attention to heir search firms.
- INCLUDE AN EXPLANATION WITH ESTATE PLANNING
DOCUMENTS – Writing a letter or explaining
apparent inequities in the will itself can prove very helpful. Not
only is such evidence of intent and competence, but it may also
stave off claims by explaining, for example, reasons for donating
to a charitable organization; or, why one child's share of the
estate is less or more than their siblings. In the alternative,
many trust and estate attorneys advise discussing the estate plan
with the beneficiaries during their lifetime. While the end goal is
the same as a written explanation to be given after death, lifetime
discussions can create discord in the family and invasion of the
testator's privacy.
- INCLUDE A NO-CONTEST/IN TERROREUM CLAUSE IN THE
WILL. A no-contest or in terroreum clause provides that a
will contestant, if unsuccessful, forfeits his/her interest under
the will. Because will contests are so rarely successful, without
significant evidence of undue influence or lack of capacity, any
good attorney would advise a potential contestant that filing an
action is likely to result in complete loss of inheritance. Without
such a clause, beneficiaries are more likely to bring an action
based on hopes of settlement and with a "nothing to lose"
attitude.
- FILE THE WILL WITH THE PROBATE COURT
– Ohio permits wills to be filed in the appropriate
probate court. Doing so creates no legal presumption. However, it
can constitute evidence that the will so firmly reflects the
testator's wishes that the testator took this unusual, extra
step.
- DOCUMENT GIVING HISTORY AND PREPARE FOR CONFLICTS THAT
ARISE AS A RESULT OF DRAFTING ATTORNEYS' RELATIONSHIPS WITH
BENEFICIARIES. A will that leaves a substantial portion of
the estate to a non-profit organization, of which the drafting
attorney is a board member, for example, invites claims of undue
influence. In Cincinnati, many members of the probate bar sit on
non-profit boards, particularly experienced and well-reputed
attorneys. And, a testator with an affinity for an organization is
likely to prefer an estate planning attorney affiliated with that
organization. The key to avoiding litigation in this instance, is
documentation of the testator's long-standing relationship with
the organization and consistency in estate planning documents, so
as to reflect a long-standing intent to name a certain organization
as a beneficiary.
- AVOID SIGNIFICANT CHANGES TO A WILL DURING TIMES OF
DECLINING HEALTH – It is not uncommon for
testators to make changes to a will, or make a first will, during
their final illness. Execution of a will in a hospital, hospice or
other setting, or execution in close proximity to death, invites
heir search firms and disgruntled family members to file a will
contest action and should be avoided if possible. Although an
illness, even if severe and life-ending, does not overcome a
will's presumption of validity, it could lead to expensive
discovery and invasion of the testator's privacy through her
medical records attorney files.
- BE CONSISTENT WITH LEGAL PROFESSIONALS
– If a testator has used the same estate planning
attorney or firm for many years, using a different attorney or firm
for a codicil, statement of personal property, or final will, could
result in claims of undue influence. This is particularly true
where the new attorney is a beneficiary or where a beneficiary or
caregiver facilitates the use of the new firm. In this case, a will
contest is particularly attractive where the attorney/facilitating
beneficiary realizes increased benefits from the new
documents.
- DOCUMENT THE TESTATOR'S EXECUTION OF THE
WILL. Particularly in times of declining health, execution
of a will should be well-documented. The attorney should take
detailed notes of who was present, the content of conversation and
other details that would inform as to the testator's competence
and free will. The attorney may also ask a series of questions that
would indicate competence. Videotaping the ceremony and examination
by a physician just prior to signing are other methods of ensuring
documented competence.
- ANTE-MORTEM PROBATE - Have THE WILL DECLARED VALID
DURING THE TESTATOR'S LIFETIME – Ohio
Revised Code § 2107.081 allows a testator, during her
lifetime, to have his/her will declared valid by the court. This is
legal proceeding that all of the will beneficiaries and all heirs
who would inherit through intestate succession be named as
defendants. Although this alternative effectively forecloses the
possibility of a successful will contest action, many testators are
rightfully hesitant to make their private matters public record. In
addition, this alternative could cause family discord or
precipitate attempts at subsequent undue influence by devisees
unhappy with the will's contents.
- FOLLOW THE LEGAL REQUIREMENTS FOR CREATING A WILL - In Ohio, to be valid, a written will must be signed by the maker or in her presence and at her direction. The execution must be attested to by two witnesses.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.