Sep 22, 2010
Dear Liza: What steps can you take ahead of time when drafting a will or trust if you anticipate that a hostile family member will take steps to fight it? If you are concerned that a hostile family member is going to challenge your estate plan, you are already taking a good first step: thinking about it. Here's the deal: it's actually pretty hard to WIN a challenge against an estate plan: you have to prove that a person was either mentally incompetent (didn't understand what they were doing) or was being placed under pressure from a third party (was being forced to do an estate plan against their free will). Both of these factors are based on the facts: the who, what, where, why, and when that's the staple of TV cop shows. But even though it may be hard to win such a case, sadly, it's not that hard to start one--all you need is a grievance and a lawyer who doesn't really care if your case is good or not. So, here are some specific things you can do discourage that lawsuit. First, write your will or trust carefully. If you intend to disinherit someone, say so. If you want people to know the reason, add that too. Don't take the chance that someone will say you accidentally 'forgot' them. If you are worried about an upset grandmother who didn't get custody of your lovely child, consider leaving a letter behind, to be opened only upon your death, explaining why you choose another guardian. If you are concerned that someone will challenge your competency at the time you signed your documents, consider videotaping the ceremoney and make sure that your witnesses are going to be willing to state that you were very clear about what you were doing and why. Also, make sure that the witnesses don't benefit in any way from your estate plan (this, of course, is true for any witness, but you want to be extra careful when there's a sticky wicket out there). And finally, use a no-contest clause in your documents. This is a statement in your will and/or trust that says that your estate plan absolutely reflects your intentions and that you ask your family and friends to honor it. It also says that anyone who challenges your estate plan will lose whatever you've left to them (although if the person's beef is that they got nothing from you, this isn't really that effective). I also think that the prospect of a challenge is a very good reason to consult a competent estate attorney in your area, as state law varies on the no-contest language that's required and because they can help you to draft a document that is hard to challenge.