The reason most people write a Will and complete their estate plan is to make sure their wishes are carried out after they die. You want to be certain that your spouse will get what you want, that your kids will get what you have left for them, and so on. Problems can arise, however, in any number of situations. If you want to disinherit a child, that can lead to big problems. If you want one child to receive more than your other children that too can lead to headaches. Problems can also arise if you have a blended family with kids from different marriages. And, serious issues may present themselves if there is any question as to your mental capacity at the time you create your Will.
Unfortunately, we live in a “sue happy” world and it seems no one likes suing one another more than family members. If there was ever any animosity between siblings or any concern that mom loved one kid more than another, the courtroom is the adult version of the sandbox.
At the beginning of a fight no one ever thinks they will lose. Someone else will always have to pay legal fees (in this case often the estate pays a fair chunk of fees). In fact, some trial lawyers tell their clients they “have nothing to lose” contesting a Will or Trust. All of these factors and many more explain why so many families wind up in court after mom and dad are gone.
How do these cases usually pan out? Very few cases ever go to trial because they are too expensive and stressful. A definitive verdict that mom was incapacitated or that dad wanted Jimmy to get more than Susie never happens. These cases are almost always resolved by some form of negotiation. Usually with one or more family members giving in to the demands of other family members simply to end the process, and the pain.
Assuming mom and dad wrote valid Wills that expressed exactly what they wanted, their testamentary intent gets modified by a vocal, complaining family member. Is this right? Probably not, but it is reality. So is there any way to stop this from happening?
The short answer is there is almost no way to absolutely stop legal action if someone is dead set on going to court. However, there are many things that can be done to minimize the risk of intrafamily lawsuits when you’re gone.
While certainly not a complete list here are a few things that will reduce the risk of a challenge to your Will. The first thing you can do is create your plan early. Do not wait until you’ve just been admitted to the hospital to write up your plan. Similarly, try not to wait until after you had a stroke or received a diagnosis of dementia. Another thing you can do is make sure your Will is properly signed. This may seem simple but unless you are working with a lawyer experienced with Wills, the most harmless of errors can bring an entire plan crashing down. If you plan to give more to one child than another, there should be some explanation of why in the Will. Otherwise, the only message the child gets is mom or dad didn’t love me as much as my siblings and that message leads to a fight. Similarly, if you are going to disinherit someone completely you need to tell your attorney and make sure there is language dealing with the situation. Lastly, your Will should have a solid “incontestability” clause. I have seen many such clauses that are written so narrowly or so poorly they are literally worthless. The clause needs teeth if you want to deter an attack on your wishes. Needless to say you will only get such language from an experienced estate planning attorney.
The last point – having an experienced estate planning attorney – is an important one. If you are single with one child who gets everything in your Will, you may be able to use “do it yourself” documents. But if you have any type of complexity or potential complexity, you should hire an attorney. Now every client says their situation is simple, and every client swears their children will never fight. Experience tells a different story.