Many people devote time, energy and thought to the way in which they want their financial legacy distributed to their family and loved ones. When a disenchanted family member or other interested party challenges a will or trust, your intentions and plans can be derailed. Presumably, you have reasons for distributing specific assets to a certain family manner while leaving other assets to other family members.
Because a will or trust document must speak for an individual after he or she passes away, precautions must be taken during an individual’s life to prevent frustration of the decedent’s intentions and wishes. Even if the challenge to your estate plan is not successful, the disruption can tie up your assets, so they are not available to your surviving loves ones. Litigation to resolve the challenge also can also deplete the value of your estate.
There are a range of measures that can be taken to minimize the risk that your will or trust will not be challenged, such as:
No Contest Clause: Kansas law recognizes the enforceability of a “no contest” clause included in a will or trust. Generally, this type of clause provides that any party that challenges the terms of the estate planning instrument forfeits any inheritance if such a challenge is unsuccessful. While this can be the most efficient way to prevent interference with testamentary intentions, some states do not recognize the enforceability of a “no contest” clause. Further, some states represent such a clause in a will but not a trust agreement.
Videotape the Signing of the Will: When you appear at the office of your attorney to execute the will or trust, your attorney might make a video record of you reciting the terms of the will or trust and signing the document. This video provides evidence that you appear to understand what you are doing and that you do not appear to be under any duress during the process of approving the terms and signing the instrument. As an experienced Kansas Probate Attorney, J. Joseph Weber understands the litany of questions to ask when making a video to establish mental competency of a client.
Submit to a Medical Examine: Since incapacity is one of the most common grounds for challenging a will or trust, you might want to see a doctor prior to executing the document. While a visit to your family doctor might be sufficient to produce a medical record regarding your competency, there might be cases that justify a visit to a forensic psychiatrist. The bottom line is that the process of proving mental incompetency is much more difficult when a doctor has examined a person shortly before he or she drafts a will or trust.
Exclude Beneficiaries from the Drafting Process: Duress or undue influence is another common ground used in court proceedings to challenge a will or trust. If those who have a financial interest in your estate are excluded from the process of drafting and execution of your trust or will, this will make it more difficult to successfully assert a claim of undue influence. When you meet with your attorney during consultations and to formalize documents, you should leave those who will receive assets, or those who expect to receive assets at home.
If you have questions about avoiding a will contest, we welcome the opportunity to talk to you and answer your questions. We invite you to contact the Weber Law Office at (316) 265-7802 or to submit an inquiry form through this website to schedule your initial consultation.