3 Steps to Take to Protect Estate Plan from Challenge
My brother and I are about ready to get my mother to make out her will and a revocable trust. How do you make sure that the will is not contestable? Is there a way to do that and what does that require?
Any will is contestable in that any party at interest has a right to challenge it. However, that doesn’t mean that any challenge will be successful. Your mother’s will can be challenged based on arguments that either your mother doesn’t have sufficient capacity to execute the will or she is under your and your brother’s undue influence, or both. Often these challenges are related since someone with failing capacity is more likely to fall under someone else’s undue influence. The burden is on the person challenging the will to prove these issues, though if you and your brother are acting as fiduciaries for your mother—handling all of her finances, for instance—the burden may switch to you to prove that she has capacity and you’re not unduly influencing her.
Protections to deter or win a challenge include:
- Work with a lawyer who is very careful to establish your mother’s capacity and her true witnesses who will be able to testify to this if there is a challenge.
- Include a so-called in terrorem or no-contest clause in the will. This says that if a beneficiary challenges the will, she will lose her benefits under the will. Of course, in order for this to have the desired effect, the potential challenger must receive something under the will or trust.
- Transfer all your mother’s assets to a revocable trust. The trust, unlike the will, is private. While keeping everything private and outside of probate doesn’t guarantee that there’s no challenge, it does make the challenge a bit more difficult.