Dodging a Will Contest

by | May 15, 2019 | Uncategorized | 0 comments

Will contests are heartbreaking. They almost always result in permanent schisms within a family. But they can often be avoided.

Here are the steps we would suggest to cut down on the likelihood of a legal challenge to a Will:

First, make sure that the Will identifies all of the children of the person making the Will. Even children who are not to receive anything under the Will need to be referred to in the Will in order to preclude an argument that “Dad meant to leave me part of the estate. He must have forgotten about me.” An heir who can convince a judge that “Dad forgot about me” is an heir who can sometimes claim a share of the estate to which they are not entitled. So, just include a sentence in the Will (or Trust) that says, “The names of my children are _____________.”

Second, include a generic statement that, “If someone is not named as an heir under this Will, I left them out on purpose.”

Third, if you think that a particular child may be prone to file a legal challenge, you can go a step further and name them in the generic statement: “If someone is not named as an heir under this Will, I left them out on purpose. This includes my child, _________, in particular.”

Finally, if you think that your memory is not as good as it used to be and fear that someone might challenge your Will by arguing that you were not mentally competent to make it, we would recommend that you obtain a short letter from your physician immediately following the date that the Will was signed. The letter should state your doctor’s opinion that you have the legal competence to make a Will. That letter should then be stored with the Will. In a legal proceeding based on an accusation of mental incompetence, a letter from your physician will carry a great deal of weight.

If these steps are taken, the chances of a successful Will contest drop to essentially zero. Though an heir may be miffed that you left them out of your Will, the risk of a family feud following from that can be effectively eliminated.

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Daniel Patchin

Benjamin Monaghan, Attorney

Benjamin Monaghan