How to avoid a Will or Trust contest
We all see in the news that different celebrity families have filed in court to contest a celebrity’s estate. Most of the time, the fight is over money. Sometimes, as with Robin Williams, it is partly a fight over stuff—memorabilia associated with his celebrity for example. Now I can’t speak for celebrities, but I can speak for my clients, hardworking, loving people who really don’t want their loved ones to end up in a huge court battle. There are several things you can do to avoid a Last Will or Trust contest.
1st, let’s explain what a Last Will or Trust contest is and who is usually involved. Here are the players. If we are talking about a Last Will, the person contesting is usually claiming that 1) the document itself is invalid (forgery), 2) the document was made with undue influence (someone sat with a gun to the head of the writer when the Last Will was written or signed) or 3) The writer of the Last Will was mentally incompetent when the Last Will was written and signed. Unless someone literally sat with a gun or checked someone out of a psychiatric ward to go sign the Last Will or Trust, it is not that easy to prove undue influence and mental incapacity. Proving a Last Will or Trust is a forgery may or may not be easier.
Many of my clients worry about a Last Will or Trust contest, but the truth is, what they are really worried about is that everyone won’t be on the same page and peacefully follow their wishes. It is an unusual person who does not want family harmony when they die and thereafter. Having said that, here is my advice.
1. If you have been diagnosed with Alzheimer’s or dementia, get your documents done immediately. I would recommend going to your doctor within a couple of days of signing your estate planning documents for a reevaluation of sorts re: your competency to understand the estate planning documents. Have the doctor note in his/her records whether signing legal documents is ok.
Obviously, the best time to get your estate planning documents in order is when you are running on all 4 cylinders.
2. Have estate planning documents that not only you can understand, but that you think your loved ones will understand. There is no point in having a Last Will or Trust done that are confusing and full of jargon you don’t understand. Less comprehension results in more fights and more interpretations of what you must have intended.
Estate planning documents can be written in simple English. If your documents say: I give $10,000 to Jane, it is clear what you intend to happen. It would be difficult to come up with a different interpretation.
If, however, your estate planning documents say: “Notwithstanding Article 4.6 and 4.8(b)(6)(c) above, I bequeath, devise and distribute $10,000 to Jane,” you have to figure out what “notwithstanding” means, how Article 4.6 applies, how 4.8(b)(6)(c) applies, what bequeath means and what devise means. You can see how confusion and lack of comprehension result and how now there is so much room for interpretation and misinterpretation.
One of the most important services an attorney can provide, in my opinion, is to write all of the estate planning documents in language everyone can understand.
3. Many people are uncomfortable discussing their estate planning documents with their family. I think part of this is due to the fact that people feel like they are jinxing their longevity by discussing these documents too much. As a society, we don’t discuss death much at all. People worry that loved ones will hire a hitman to take them out if they know they are part of someone’s beneficiary list. All of these reasons, whether based in reality or not, feel very real. However, discussing with your children or other adult beneficiaries what you intend to have happen results in a much, much, much lower chance that there will be disagreements or court action when you pass.
Any discussion with the family should include discussing any personal property items with monetary value and more importantly, sentimental pieces. The watch that you have worn forever, and that your father wore and your grandfather wore, could have tremendous sentimental value, even if the monetary value is not very high. Nothing inflames emotions better than dad’s watch, mom’s wedding bands, great grandma Lilly’s quilt, etc. You get the idea.
Last, you can put language in your Last Will or Trust that says if a beneficiary contests the Last Will or Trust, the beneficiary loses his/her entire inheritance. I call it the “if you bitch, you lose” clause. It is a great deterrent.