Founder
There are some relatively simple steps one can take in order to avoid a litigation with a family member contesting one’s will. First, care must be taken to make sure that the will is prepared correctly, and that the execution is proper and in the presence of an attorney. When a will execution is supervised by an attorney, it is presumed to have been done correctly.
Your next of kin can contest your will, especially if that person is someone who would inherit from you if you died without a will. For example, if you die leaving just your children, each of your children can contest the will, but no one else. If a child predeceased you, then that child’s children could contest the will. Of course, if you are planning on omitting a next of kin in your will–for example, if you do not want to leave one of your children any monies-then it is extremely important for the will to specifically state that you are not leaving that child anything. The argument that you were so incompetent at the time you signed the will that you forgot you had a child would then fail. The better strategy is to leave that child (or other close family member) a specific dollar amount and have a no-contest clause in your will. If you leave $10,000 to the person who you do not want to inherit, for example, and then have a provision in your will stating that if anyone contests your will they lose the money, there is a better chance that person will not contest the will. Of course, the amount you leave to that person must be of a value that is likely to cause that person to believe it is not worth losing the money.
How difficult is it to contest a will, generally? In New York, as in many other states, the person contesting the will would have the burden of proving that either the will was not properly executed, that the person making the will (the “testator”) was not of sound mind, or that someone used undue influence over the testator such that the testator omitted one or more family members. The burden on the person contesting the will is a large one and courts are reluctant to set aside a will easily. However, even if a will contest is unsuccessful in the end, the time and expense incurred as a result of the contest can be quite significant.
One other option, to avoid a will contest, is to prepare a revocable living trust for one’s assets, thus avoiding a probate proceeding in the courts. Can someone contest a trust? Nothing is impossible, but it is far less likely that a trust will be contested than a will. The person who is left out of the trust likely won’t even know he/she has been disinherited, or if they find out, it may be too late. Since there is no legal proceeding involved in the administration of a trust, it is more difficult to contest a trust.
Knowing what steps to take in order to avoid a will contest is extremely important and, if followed correctly, can avoid a great deal of time and expense.