One of the most important ways we can leave a legacy for our loved ones is by drafting the appropriate testamentary documents. An individual can designate who should receive his or her assets when he/she dies by signing a Last Will and Testament and making specific “bequests,” or gifts, therein. When an individual dies, the will must be admitted to the court for approval before the assets can be distributed. This process is called “probate.” The Court “proves” the will and ensures that everything was done properly.
One issue that may arise during the probate process is a conflict between family members as to how an estate should be divided. These disagreements can give rise to a “will contest,” a circumstance in which a family member argues that the court should not honor a will, because he or she does not believe that the will represents the true intent of the decedent. In New York, a will can be contested on the grounds that it was improperly executed, that the testator (the individual who executed the will) was not mentally competent, or that the will was drafted under fraud or duress.
In order to avoid a will contest and ensure that the decedent’s true wishes are upheld, the will and all other testamentary documents must be properly executed.
The following are ways to protect oneself against a will contest:
Meet with one’s attorney alone, with the exception of an assistant, paralegal, or another attorney from the firm. Family members should not be present when discussing specific bequests to be made in one’s will.
Make one’s true intentions clear to the attorney, so that he or she can draft the will accordingly. Specifically, be sure to discuss in detail one’s family tree, approximate financial holdings, and exactly how one’s assets should be distributed.
Provide evidence of one’s health and mental capacity. If there is reason to believe mental capacity will be challenged, take preventative measures in the form of a doctor’s note detailing one’s competence level.
Review and carefully read drafts in advance to ensure one’s wishes are being carried out.
Ensure that one’s attorney has proper and adequate procedures in place, such as having the appropriate number of witnesses present, making clear to the witnesses that they are witnessing the signing of a will, and having the witnesses sign affidavits.
Do not add anything to the will or cross anything out once the will has been signed and witnessed. Do not remove the staples from the will. If one wishes to make changes to a will, it is better to go through the process of drafting a will again, rather than attempting to change an existing will.
In certain circumstances, it can be helpful to have an “in terrorem,” or “no-contest” clause, inserted in one’s will. This clause provides that if a beneficiary, or person named in the will as recipient, challenges a will’s validity, that person forfeits the right to his/her bequest (and in some cases his/her children’s bequests) in the will. This clause is an effective deterrent, as beneficiaries will not want to contest the will for fear of losing their (or their children’s) inheritance.
Have open discussions with family members about one’s estate planning wishes, so that one’s intentions cannot be misinterpreted.
While there is no guaranteed method to avoid a will contest, these steps will help to ensure one’s estate is divided according to one’s wishes.
Based on the foregoing, there are significant advantages to executing a Last Will and Testament. Discussing one’s personal situation and circumstances with an experienced estate planning attorney is helpful in determining what form of planning should be used.
Ronald A. Fatoullah, Esq. is the founder of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Eva Schwechter, Esq. is an associate attorney with the firm. The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also a partner with Advice Period, a wealth management firm, and he can be reached at 424-256-7273.