Unfortunately, bitter family feuds are often caused by disagreements over an inheritance, and a disgruntled family member may seek to contest your will. You can, however, minimize the risk of this occurring.
“No contest” clause
A “no contest” clause is a common method of discouraging will contests. Although not enforceable in all states, a Kentucky court recently confirmed their validity in Kentucky. These clauses are also called in terrorem clauses because they are designed to strike fear into the heart of a beneficiary considering a challenge to the will.
Under a no-contest clause, a beneficiary who unsuccessfully challenges the will in court loses their entire bequest (gifted to them in the will). A beneficiary would, therefore, be well advised to consider the risk carefully before mounting a challenge. The effectiveness of this deterrent is dependent on the size of the bequest — the bigger the bequest, the lesser the likelihood of them demanding more.
Common grounds for will contests
By knowing some of the common grounds for challenging a will, you can reduce the chances of a will contest:
- Improper execution: The will was not signed or witnessed properly.
- Duress or undue influence: You were forced to make the will or improperly influenced.
- Fraud: For example, you were tricked into signing the document, not realizing it was a will or you were fraudulently induced into making the will.
- Incapacity: You lacked mental competency when you made the will.
- Unclear language: The will has ambiguous or contradictory wording.
- Pretermitted child: If you choose to disinherit a child, state this explicitly in your will, otherwise the omitted child may claim that the omission was unintentional.
By having your will prepared by and signed under the supervision of an experienced estate planning attorney, it can help assure that a court will uphold your wishes as expressed in the document.
A living trust can be an effective way of reducing the risk of a court challenge. If you set up a trust during your lifetime and continue to operate it for many years, a challenger would likely have a hard time proving you lacked capacity or that the document was fraudulent.
Will contests can be costly and can delay the administration of the estate. An experienced Louisville estate planning lawyer can help you minimize the risk of will contests by ensuring your will is properly drafted and executed. For your estate planning needs, contact Bruce A. Brightwell of Brightwell Law.