It is hard to predict whether a family member will challenge your Will upon your death. Nevertheless, there are some steps that you could take to make it more difficult for a Will challenge to occur.
1. State the Reason for a Reduced Share in a Letter of Intent
If you are leaving someone out of your Will, or if you are giving that person a reduced share of your estate (as compared to another beneficiary), write a Letter of Intent to your Executor stating the reason why that person is receiving nothing or a reduced share. Explain in as much detail as you are comfortable divulging to explain the disposition of your estate. Make sure the attorney drafting the Will reviews your Letter of Intent. Keep it with your Will.
2. Include a No Contest Clause in the Will
Next, you could include a “no-contest” or “in terrorem” clause in your Will. A typical “no-contest” clause states that if an heir challenges your Will and loses, then he or she gets nothing. Whenever we include a no contest clause, we typically advise leaving the heir enough of a gift so that any challenge they make to the Will would not be worth the risk of forfeiting the gift under the Will.
3. Obtain a Physicians Evaluation Report
One of the most common grounds for challenging a Will is to argue that the testator was mentally incompetent at the time of signing the Will. To insulate a Will from attack, the testator can visit with a doctor, preferably a psychiatrist, geriatrician or psychologist, to complete an evaluation report for competency. While this strategy is admittedly difficult, expensive and time-consuming, there’s nothing like a report from a psychiatrist that shows that after a thorough examination, the testator was competent. Obviously, such an examination and report should be performed contemporaneously with the execution of the Will.
4. Videotape the Will Signing
A video recording made during the actual Will signing could prove that the you signed your Will freely and voluntarily. You explain in your own words the reasoning behind the disposition of your estate. Yet, videotaping does entail some risks. The video could inadvertently show that the testator lacked capacity or another person unduly influenced the estate plan. Any practice sessions with the attorney would be subject to discovery in court. Consequently, this strategy is rarely used except when the testator (the signor of the Will) is clearly competent and comfortable in front of a video camera.
5. Keep Intended Beneficiaries Away from the Preparation and Signing of the Will
You should do everything in your power to remove any appearance of undue influence, not only while the Will is drafted, but especially when it is signed. That means not involving anyone who stands to inherit under the Will during the drafting and execution process. In other words, do not have any beneficiary of the Will present when (i) the structure of the Will is discussed with the attorney drafting the Will, (ii) you travel to the attorney’s office, or (iii) you sign the Will.
6. Avoid Using a Will to Transfer Your Property
The best strategy to avoid a Will contest is to avoid formal probate. How do you avoid formal probate? Give property during your life to the intended beneficiary while you are clearly independent and competent. Have beneficiary designations for all of your investment accounts, retirement accounts and retirement plans. Put real estate in a trust or hold it with the intended beneficiary as Joint Tenants with Rights of Survivorship. Assign tangible personal property like artwork, jewelry, coin collections, antiques and other such property to a trust. Designate the beneficiary of your car on the back of your car registration. Own your valuable boat jointly with its intended beneficiary.
Avoiding formal probate will mean the Will controls no property. If the Will controls no property, then disgruntled heirs will have nothing to fight over. With nothing to fight over, your executor will simply file an estate tax return, distribute the property to the intended beneficiaries and close the estate.
Ultimately, you should consult with an experienced estate planning attorney to help you draft your Will and prepare your estate plan. The attorney will know the best way to protect your estate and he or she can advise you on strategies to make your estate plan as rock-solid as possible.