We know that you trust your loved ones and want to give them the world, which is why it can be hard for you to consider a future where they battle each other in court over inheritance issues or how to handle incapacity. Unfortunately, we see it all the time and know that you need to prepare for such an eventuality.
Family dynamics are extremely complicated and can be prone to conflict during even the best of times, so when tragedy strikes a key member of the household even minor tensions and disagreements can explode into bitter conflict. Add access to money is on the line and the potential for discord is exponentially increased.
The good news is you can drastically reduce the odds of such conflict through estate planning with the support of a lawyer who understands and can anticipate these dynamics. It is so important to never rely on generic, do-it-yourself planning documents found online because even the best sets of documents will be unable to anticipate and navigate complex emotional matters like this.
Last week, we discussed one of the most common reasons for dispute: poor fiduciary selection, which involves selecting the wrong trustee, executor, or guardian for your kids. Today, we focus on another leading catalyst for conflict: contests to the validity of your will and/or trust.
2: Contesting the validity of wills and trusts
The validity of your will and/or trust can be contested in court for a few different reasons. If the contest is successful, the court declares your will or trust invalid, which effectively means the document(s) never existed in the first place.
However, just because someone disagrees with what he or she received in your will or trust doesn’t mean that person can contest it. Whether or not the individual agrees with the terms of your plan is irrelevant because it is your plan and your wishes. Rather, they must prove that your plan is based on one or more of the following legal grounds:
- The document was improperly executed (signed, witnessed, and/or notarized) as required by state law.
- You did not have the necessary mental capacity at the time you created the document to understand what you were doing.
- Someone unduly influenced or coerced you into creating or changing the document.
- The document was procured by fraud.
Furthermore, only those individuals with “legal standing” can contest your will or trust– Just because someone was intimately involved in your life, even if they’re a blood relative, doesn’t automatically mean they can legally contest your plan. Those with the potential for legal standing generally fall into two categories: Family members who would inherit, or inherit more, under state law if you never created the document, or beneficiaries (family, friends, and charities) named or given a larger bequest in a previous version of the document.
Solution: There are times when family members might contest your will and/or trust over legitimate concerns, such as if they believe you were tricked or coerced into changing your plan by an unscrupulous caregiver. Those are not the situations we are addressing here.
We are seeking to prevent contests that are attempts by disgruntled family members and/or would-be beneficiaries seeking to improve the benefit they received through your plan, and contests that are a result of disputes between members of blended families, particularly those that arise between spouses and children from a previous marriage.
First off, working with an experienced lawyer like us is of paramount importance if you have one or more family members who are unhappy or who may be unhappy with how they are treated in your plan, especially if you’re seeking to disinherit or favor one part of your family over another. Some of the leading reasons for such unhappiness include having a plan that benefits some children more than others, as well as when your plan benefits friends, unmarried domestic partners, and/or other individuals instead of/in addition to your family. Conflict is also likely when you name a third-party trustee to manage an adult beneficiary’s inheritance because they are likely to be negatively affected by the sudden windfall of money.
In these cases, it’s vital to make sure your plan is properly created and maintained to ensure these individuals will not have any legal ground to contest your will or trust. One way you can do this is to include clear language that you are making the choices laid out in your plan of your own free will so no one will be able to challenge your wishes by claiming your incapacity or duress.
A second source of possible tension arises from having a blended family. If you are in a marriage other than your first and have children from a prior marriage, there’s an inherent risk of dispute because your children and spouse often have conflicting interests. To reduce the likelihood of dispute, it’s crucial that your plan contain clear and unambiguous terms spelling out the beneficiaries’ exact rights, along with the rights and responsibilities of executors and/or trustees.
In both of these scenarios, it’s crucial that you clearly communicate your intentions to everyone affected by your will or trust while you’re still alive, rather than having them learn about it when you’re no longer around. We often recommend holding a family meeting (which we can help facilitate) to go over everything with all impacted parties.
Prevent disputes before they happen
Whether the potential dispute arises from disgruntled heirs, sibling rivalries, or the conflicting interests of members of your blended family, your Personal Family Lawyer® is specifically trained to predict and prevent such conflicts. Meet with us today to learn more.
This article is a service of Levi Alexander, Personal Family Lawyer®. We don’t just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session, ™ during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.