How To Protect Your Will From Unhappy Relatives

Having an updated Last Will and Testament is now more important than ever. However, a will that is poorly created or not frequently updated can be vulnerable to contestation.

What is Contestation?

Who Can Win a Contest?

Will contests are brought on by individuals; this could be family members, close friends, or business partners. These individuals believe they have been disinherited on false pretenses, but not all of your family or friends have the ability to contest your will in court. They must have legal “standing” to file a lawsuit. A standing means that a person involved in a lawsuit will be affected personally by the outcome of the case.

The following people have the ability to contest a will in probate court:

• Current beneficiaries that are named in the will

• Previous beneficiaries who were disinherited but included in a previous will

• An individual not named in the will but who would be eligible to inherit property (typically a biological child or spouse)

If a will is successfully contested, then the court will declare the will invalid and “throw it out.” If there is a previous will, then the court will abide by those terms. If there are no other estate planning documents, the state’s laws will decide who inherits what property. As you might expect, this can be a disastrous outcome for your intended beneficiaries.

Depending on your circumstances or goals, a trust can have more benefits to a will; like offering improved asset protection and more privacy by keeping your personal information out of probate, a public process all wills must go through.

What are the Legal Grounds for Contesting a Will?

If a person does have the legal standing to challenge your will, they must prove that the will is invalid due to one of the four reasons below:

• The will is incomplete or flawed. Each state has specific laws dictating how a will or trust must be signed in order for it to be legally valid. A will not following these rules could be contested:
• signed without the proper number of witnesses
• signatures missing, or
• omitting important text

• Lack of mental capacity. When an individual has the capacity to make a will means that the person understands (a) their assets, (b) their family relationships, and (c) the legal effect of signing a will. Each state has laws that set the standard that have to be overcome to prove that a person lacked the mental capacity to sign a will.

• The person creating the will was overly influenced into signing it. As people age and become weaker both physically and mentally. Others may try to heavily influence decisions, including how to plan their estate. This is called undue influence. This affects the young and not so young. Undue influence is not just nagging or verbal threats, it is more than that. It can be so extreme that it causes the individual to give in and change your estate plan to favor the undue influencer.

• The will was procured by fraud. If someone thinks they are signing a will or trust but actually signing some other type of document or a document with different provisions is procured by fraud.

How to Avoid a Will Contest

Will contests are something you’ll want to avoid at all costs because of the time and expenses around it. Not only would it jeopardize your final wishes, but it also causes unnecessary conflict among your loved ones during an emotionally trying time.

To avoid these disastrous and painful scenarios, consider the following:



• “Doing it yourself” is not always the best way to go. The smallest mistake can leave your wishes up to being contested by an unhappy relative or business partner. An experienced estate planning attorney will be able to help you create a plan that will be strong and avoid lawsuits.

• Discuss your wishes with your family. It’s important to discuss your wishes with your family. There is no need to discuss all of the details of your estate plan, but keeping beneficiaries in the loop by setting expectations and expressing your wishes will help avoid future will contests.

• Don’t just disinherit wayward child(ren). Instead of completely disinheriting a beneficiary who may squander their inheritance or use it against your wishes, you can hold their inheritance in a lifetime discretionary trust. This would would be overseen by a trusted individual or third party. Your beneficiary would receive distributions over time instead of outright cash in a lump sum.

• Keep your will up to date. Life changes—people are born and die, property is acquired, marriages and divorces occur, and your wishes may change. Your will is only effective when it reflects these changing circumstances. Updating your will/estate plan to reflect your current goals will be better at discouraging any future challenges.

The Bottom Line about Will Contests

An estate plan that is designed to prevent challenges will go a long way to giving you and your loved one’s peace of mind.

While it is easy to assume that a will or trust signed in an attorney’s office is valid, not all attorneys specialize in estate planning. They may be unfamiliar with the formalities required to make a will or trust legally valid in their state. Ensuring that an estate plan is protected against these legal grounds is particularly important if you wish to disinherit or favor one part of your family.

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