Why people challenge estates (and how to prevent it)

| Jun 2, 2021 | Estate Litigation

It is tragic when someone passes away and their loved ones fight over their estate rather than coming together to mourn and support one another. While there is no silver bullet that will guarantee that no one will challenge your estate plan after you are gone, there are a few specific steps you can take to make it less likely.

Undue influence and testamentary capacity

In order for a will to be valid, the testator (the person creating the will) must have testamentary capacity. This means that they must be sound of mind and understand the extent of their assets, and they must create their will free of improper external influences.

One of the most common ways of challenging a will is to allege that someone was exercising undue influence over the testator. This means that they took advantage of the testator’s weakened state or advanced age to pressure them, through threats or coercion, into writing or modifying the will to benefit them disproportionally.

Proving your testamentary capacity

The best way to reduce the likelihood of an undue influence challenge on your will is to follow your state’s testamentary procedure very carefully. Make sure that you have a professional assist you in crafting your will and be sure to sign it in the presence of the requisite number of witnesses. That way they will be able to testify that you were sound of mind and free of improper influences when establishing your estate plan.

It’s also a good idea to avoid completely leaving close family members out of your estate plan, even if you don’t want them to have anything. Naming them specifically in your will and leaving them even a nominal gift is typically enough to show that you were of sound mind and that you remembered them, so that they cannot claim that you lacked testamentary capacity.

It’s a sad fact of life that families are often torn apart by litigation over a deceased family member’s will. By taking intentional steps to minimize the likelihood of a successful challenge against your estate for undue influence, you can help to ensure that your hard-earned assets go where you want them to, and that those you leave behind will not feud over your estate once you are gone.