A primary motivation for creating a Last Will and Testament is to ensure that estate assets are distributed according to the Testator’s wishes after they are gone. If that Will is invalidated, however, the state ultimately decides what happens to your assets. Knowing that it seems wise to do what you can to prevent challenges to your Will. Toward that end, a Nashua estate planning attorney at DeBruyckere Law discusses what you can do to prevent a challenge to your Will.
What Does It Mean to Contest a Will?
Your estate will likely go through the legal process known as “probate” after your death. Ultimately, probate results in the distribution of a decedent’s estate assets; however, another function of the probate process is litigating any challenges to the decedent’s Will. If someone does challenge the validity of the Will by filing a Will contest, the probate process must effectively come to a halt while the challenge is litigated. If the contestant is successful, the Will is declared invalid and the state intestate succession laws will be used to probate the estate. If the Will contest is unsuccessful, the probate process continues using the terms of the Will to distribute estate assets. After going to the trouble of executing a Will, no one wants the terms of that Will to effectively be ignored after they are gone.
How Can a Will Be Invalidated?
Contrary to what many people believe, a Will cannot be challenged based solely on the fact that a beneficiary is not happy with the inheritance they received (or did not receive) according to the terms of the Will. To succeed in a Will contest in New Hampshire a contestant must prove at least one of the following legal grounds on which the Will can be declared invalid:
- Improperly witnessed
- Lack of testamentary capacity
- Undue influence
Tools and Strategies to Help Avoid a Will Contest
You cannot guarantee that your Will will not be contested. Nevertheless, there are a few things you can do that will make a successful Will contest less likely, such as:
- Do not use a DIY Will form. The DIY route may sound like a great way to save time and money when creating your Will; however, DIY legal documents are typically riddled with ambiguities and errors, making litigation more likely down the road. Working with an experienced attorney gives you the benefit of professional advice and oversight as well as providing another disinterested witness who can testify to your state of mind in the event “lack of testamentary capacity” is alleged in a Will contest.
- Convert assets to non-probate assets. Assets gifted in your Will must go through probate whereas non-probate assets bypass probate altogether. Converting assets to non-probate assets when possible, therefore, only makes sense. Common examples of non-probate assets include trust assets, proceeds of a life insurance policy, certain types of jointly held property, and funds held in a “payable on death (POD)” account.
- Get a checkup just prior to executing your Will. “Lack of testamentary capacity” is a common basis for a Will contest. A good tactic for heading off such a claim is to get a complete physical done within days of executing your Will.
- Leave behind a Letter of Instruction. This is a letter that is written by you explaining anything not already covered elsewhere in your estate plan. You can use this option to explain controversial bequests that might lead to a Will contest.
- Include a “no contest” clause in your Will. A “no contest” clause is a provision in a Will that effectively disinherits anyone who tries to contest the Will. State laws vary with regard to how they approach no contest clauses.
Contact Nashua Estate Planning Attorneys
If you have additional questions or concerns, please contact the Nashua estate planning attorneys at DeBruyckere Law Offices by calling our New Hampshire office at (603) 894-4141 or our Massachusetts office (978) 969-0331 to learn more or visit our website at http://dadlawoffices.com .
A Will must be “signed by 2 or more credible witnesses, who shall at the request of the Testator and in the Testator’s presence, attest to the Testator’s signature.”
For a Testator to have the capacity necessary to execute a Will, he/she must:
· Understand the act of making a Will;
· Understand the property to be disposed of and its general nature;
· Understand his or her natural objects of affection, usually the Testator’s nearest relatives;
· Understand and intend to carry out the will’s dispositional scheme; and
· If capacity is present, the Will must not be the offspring of a delusion
Undue influence exists if it “took away the free will of the Testator, and substitute another’s will for his so that in fact the instrument is not the expression of the wishes of the Testator in the disposition of the property, but of the wishes of another.”