Although there is no iron-clad way to keep a Will or Family Trust contest from occurring, there are ways to cut down on the possibility of such a battle.

First, you can include a no-contest provision in your Will or Family Trust which states that anyone who tries to have the document nullified in court is not to inherit any of your property.

Second, you can include a general disinheritance provision which indicates that you intentionally left out all of those persons that you did not name as a beneficiary in your Will or Family Trust.

Third, you can be even more explicit and name the person or persons that you want to be sure don’t end up receiving a part of your estate. Although such a step should be considered drastic, if you have a strong expectation that one or more of your “natural” heirs may be tempted to engage in such a battle, it may be necessary to take this additional precaution.

Finally, for clients who are elderly or whose memories are weakening, I sometimes recommend that they have a visit with their physician to have a “memory test” done to document that they have the mental capacity to make decisions such as those reflected in a Will or Family Trust.

The truth is that a court will be unlikely to overturn a Will or Family Trust unless there is strong evidence that:

  • the person who signed the document had already been medically determined to be incompetent by the time the document was executed
  • the person was deceived about something and that deception led to the changing of the Will or Family Trust
  • the person was coerced or enticed (by threat or promise of reward) into changing the terms of the Will or Living Trust

Daniel Patchin

Benjamin Monaghan