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.
In Peterson v. Harrell, decided February 1, 2010, the Georgia Supreme Court ruled that a will in which the testator struck out portions of language with a pen was valid.
Under Georgia law, the intent to revoke a will can be presumed from the cancellation of a material portion of the will.
The court ruled that the ink pen marks, which crossed out the names of successor beneficiaries and the executor and listed an alternate executor, did not show that the testator wished to revoke her will. The court pointed out that the will was found in good condition on her desk and that she had initialed the changes. The court found that the testator only intended to cancel certain parts of the will and not to revoke the will in its entirety.
An Illinois court ruled a provision in a man’s will that provided that any of his potential heirs who married non-Jews was invalid.
Read more here.
I recently read an article about the high rates of intestacy (dying without a will) in the United States. Some of the theories about why people die without wills are cost, fear of death, procrastination, laziness, or the belief a will is unnecessary. This article blamed the high rates of intestacy not on any of the usual reasons, but instead upon lawyers’ failure to market wills to potential customers.
I agree with this theory. I most likely would not have an estate plan if I wasn’t an estate planning attorney. Not because I can’t afford it or don’t want to protect my family – but because I would have no idea who to contact or how to get started.
That’s one of the reasons I’ve tried to make the estate planning process as simple as possible for consumers – I know many families out there who need estate planning but have no idea what it will cost, where to start, or who to call.