Avoid a Will Contest?

by | Jul 25, 2019 | Uncategorized | 0 comments

Are there ways to avoid a Will contest?  Yes.  Several.

To understand this topic, it is important to start with this truth:  You have the legal right to leave your estate to whomever you desire.  You have no obligation to include anyone that you’d rather leave out.

Steps to Avoid Will Contest:

With that as the backdrop, what steps can you take to decrease the possibility of a Will contest?

First, you must leave a Last Will and Testament or a Living Trust.  Without such a document, the state of Idaho dictates who will inherit your property and possessions.  That will likely include those you want to exclude unless you state your wishes in writing.

Second, in your Will or Trust, simply naming your heirs is a great start.  If your list of heirs does not include certain people, then the courts will assume that was intentional on your part.

Third, if you want to shore up that decision, you can simply add a provision that effectively says, “If I left you out of my Will, I left you out on purpose.”  That sends an even stronger message to the courts to not second-guess your decision.

Finally, if you want to really nail down your decision, you can name those who you want to exclude by name.  Saying, for example, “I don’t want my brother, John Doe, to receive any of my estate under any circumstances.”  Normally this “in your face” approach is not necessary unless you are convinced that your brother is prone to litigation.  But, if he is, this sends an even stronger message to the judge after you’re gone.

One last step can be taken if you are concerned that someone in the family may try to argue that you were mentally incompetent to make the Will that left them out.  If that is the case, shortly after you’ve made the Will, you should visit with your doctor and ask for a letter confirming that you have the requisite mental capacity to make a Will.  Then the original of that letter should be stored with your Will.  This final tool will make it essentially impossible for a Will contest to be successful.

Conclusion:

It is our practice to always include the first, second, and third lines of defense listed above in any Will or Trust we prepare.  And, if you have a concern about a specific family member, we will add the final provision.

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Daniel Patchin

Benjamin Monaghan, Attorney

Benjamin Monaghan