Can my will be successfully challenged?
I meet clients all the time who worry their estate planning wishes may not be carried out. They worry someone in their family will come in to contest the will. They may have experienced what money can do to people after a death firsthand. Or they may have a family that doesn’t get along particularly well now, and they worry about what will happen after they’re gone.
However, will challenges are rarely successful. There are generally two grounds on which will challenges can be brought, and they are usually in extreme circumstances. First, if you were not mentally competent, or of “sound mind” when you made the will, the will could be successfully challenged. However, that’s a pretty high burden to prove. Simply being forgetful or unable to recognize people you used to know don’t establish that you are mentally incompetent. A will challenger has to prove incapacity, or that the individual who made the will did not know what a will was, didn’t know that he or she was making one, and/or didn’t understood what he or she owned. The second situation in which a will can be challenged is if it was obtained by fraud, duress or undue influence. This requires proving that a person manipulated another person who was in a vulnerable mental or emotional state in order to convince the person to leave his or her property in a way the person wouldn’t otherwise have.
If you want to make sure your will stands up to a challenge, there are a few steps you can take:
- Make sure your will was witnessed by two individuals and a notary. A will can still be legal without the notarization, but it makes the probate process much easier if a notary is present.
- Consider including a “no contest” clause in the will. A no contest clause provides that if a beneficiary challenges a will, he will receive nothing if the challenge is unsuccessful.
- Let your attorney know there may be a will challenge. The attorney may consider filming you or recording your voice as evidence of your competency.
Do you have questions about drafting your will? Are you concerned about a will challenge? If so, contact Sarah White, Marietta estate planning attorney, at 678-453-6490. She will advise you of the best course of action to take.