Common Ways to Discourage a Will Contest

If a decedent’s purported will is successfully contested and not admitted to probate, the result may be that decedent’s estate is to be administered in accordance to the terms of a prior existing will or under intestacy law as though the decedent had died without a will.

Updating one’s estate plan by establishing a new will seems to indicate a prior existing will does not act in accordance with your current wishes. Procuring a will also indicates an aversion to letting assets pass intestate. To help ensure your desires will be honored, certain steps can be taken to discourage a potential will contest.

Situations involving a disinheritance or where a natural heir is not equally provided for can lead to a will contest if proper planning is not involved. As discussed in several recent posts, there are three ways to successfully contest the validity of a will: 1) defective instrument; 2) incompetence; and 3) undue influence.

Ensuring your will and other important estate planning documents are not defective/unenforceable instruments can be accomplished by consulting with an experienced estate planning attorney licensed in the state of which you reside. One step in protecting a will against an argument of testator incompetence is obtaining a contemporaneous examination and written report by your regular physician commenting on your ability to comprehend and execute estate planning documents.

Minimizing the potential for a will contest on the grounds of undue influence often involves taking several precautionary measures. A disgruntled heir will likely try to prove the existence of suspicious circumstances that indicate the person executing the will did not act independently. It is wise to either fully exclude or limit the involvement of a principal beneficiary during the estate planning process to protect them from being the basis for an undue influence argument. It may also be prudent to seek advice from a second, independent attorney experienced in estate and trust matters to further the point that you received independent advice in executing your will and other estate planning documents.

If you are disinheriting a natural heir, you can demonstrate that your decision in doing so is intentional by mentioning that heir in some fashion. In Tennessee, however, leaving a natural heir a small or nominal bequest should be done cautiously because named beneficiaries in Tennessee often have certain statutory rights that permit them greater participation in court proceedings, regardless of how small or large their share.

No-contest provisions (formerly known as in terrorem clauses) are valid in Tennessee in certain circumstances. No contest provisions seek to fully disinherit an heir if they challenge the validity of the instrument. Remember, however, that no-contest provisions are only effective in disincentive will contests from people already set to receive certain assets under your will.

Another way to minimize litigation exposure relating to wills is to structure assets so they pass upon death outside of probate through trusts and other gifting methods and payable/transferable-on-death assets. Properly drafted and funded trust instruments can cause assets to bypass the probate process and the venue by which the probate process allows unhappy heirs to easily file a will contest.

While a disgruntled relative can file a claim or contest a will with little to no initial out-of-pocket costs, challenging the validity of a trust by filing a trust suit can be exceedingly more costly and difficult to initiate.

Other potential benefits to utilizing trusts in one’s estate plan include creditor protection and provisions for caring for beneficiaries who have difficultly managing their personal financial affairs.

No one should be reckless in establishing an estate plan. This is critical for people who in their estate plans intend on disinheriting a natural heir or otherwise making a distribution or bequest which has the potential to upset others. Through a well-developed estate plan, your desires and objectives can be protected and your loved ones can also rest a little easier, knowing your desires will ultimately be honored.

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