YOUNGER LAW NEWS: PREVENTING A WILL CONTEST
Emotions can run high when a family member dies. If another family member is unhappy with the amount they received (or didn't receive) under a will, he or she may contest the will. Will contests can drag out for years, keeping all the heirs from getting what they are entitled to. They can also be enormously expensive. There is an old expression: "blood is thicker than water." my corollary to that is: "Blood boils at a much lower temperature than water." It may be impossible to prevent relatives from fighting over your will entirely, but there are steps you can take to try to minimize squabbles and ensure your intentions are carried out.
Your will can be contested if a family member believes you did not have the requisite mental capacity to execute the will, that someone exerted undue influence over you, that someone committed fraud, or that the will was not executed properly.
Here are some steps that may make a will contest less likely to succeed:
Make sure your will is properly executed. The best way to do this is to have an experienced elder law or estate planning attorney assist you in drafting and executing the will. In New Jersey, wills need to be signed and witnessed by two witnesses. Having a will also notarized makes New Jersey's simple probate process even easier.
Explain your decision. If family members understand the reasoning behind the decisions in your will, they may be less likely to contest the will. It is a good idea to talk to family members at the time you draft the will and explain why someone is getting left out of the will or getting a reduced share. If you don't discuss it in person, state the reason in the will. Better yet, you may also want to include a letter with the will. Do not do this without guidance from an experienced attorney. Explanations can be ambiguous and do more harm than good.
Use a no-contest clause. On paper, this is one of the most effective ways of preventing a challenge to your will is to include a no-contest clause (also called an "in terrorem clause") in the will. This will work only if you are willing to leave something of value to the potentially disgruntled family member. A no-contest clause provides that if an heir challenges the will and loses, then he or she will get nothing. You must leave the heir enough so that a challenge is not worth the risk of losing the inheritance. This type of provision is not favored in New Jersey. You should use it only after consultation with an experienced attorney and with the knowledge that it might not work. The general rule in New Jersey is that a person who challenges a will may be entitled to an award of attorney fees against the estate, even if the challenge is unsuccessful. The challenge must, however, meet certain minimum criteria of good faith, but the hurdle is fairly low. If the reasons for disinheriting someone change so that they are no longer applicable, be sure to execute a new will, or a codicil to your existing one, that expresses your present intentions. This can be a problem if you do not have the capacity to execute those documents. Discuss with your attorney alternate things that can be done if you lack capacity to make changes.
Prove competency. A common way of challenging a will is to argue that the deceased family member was not mentally competent at the time he or she signed the will. You can try to avoid this by making sure the attorney drafting the will tests you for competency. This could involve seeing a doctor or answering a series of questions.
Video record the will signing. A video recording of the will signing allows your family members and the court to see that you are freely signing the will and makes it more difficult to argue that you did not have the requisite mental capacity to agree to the will. There are downsides to this type of procedure. Among these is the validity of a "home made" recording, which can be edited. Another is the fact that people act differently when they know they are "on camera."
Remove the appearance of undue influence. Another common method of challenging a will is to argue that someone exerted undue influence over the deceased family member. In New Jersey, it is fairly easy to overcome the first hurdle: proving the existence of influence. If that hurdle is met, the burden of proof shifts to the person who is accused of exerting influence. He or she must then prove there was no influence or that, if influence existed, it was not undue. For example, if you are planning to leave everything to your daughter who is also your primary caregiver, your other children might argue that your daughter took advantage of her position to influence you. A New Jersey court would have little difficulty finding that your daughter was in a position to influence you. She would then have to show that she did not misuse her position. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in the drafting of your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn't even drive you to the attorney's office. Sometimes such precautions are simply not possible. Discussions with your attorney are critical to avoid future problems.
DO NOT use forms you down load from the internet or buy in a store. When you buy something on line, you are supposed to be cautioned to seek competent legal advice. This is done for primarily to protect the vendor of the document, but it's really good advice. I often tell my clients: "It's not what you don't know that hurts you. It's what you don't know that you don't know. I have seen many documents purchased online and in office supply stores, wills and powers of attorney, that are either defective or that accomplish a result completely opposite to what the purchaser wants. People execute wills for a variety of purposes. The intention is to accomplish financial and other results. When you want to "do it yourself," go to Home Depot and notice that they do not sell legal documents. Drafting your own will without legal advice can have disastrous, and expensive, unintended consequences.