Will contests are a nuisance to the deceased’s heirs as well as to the drafting attorney. The risk of a will contest can be reduced by:
- Developing Evidence of Capacity
If the client’s mental status is a concern, consider obtaining a doctor’s letter confirming that capacity exists. Also, consider videotaping the will execution ceremony, but only if you are convinced that the testator will appear clearly competent on video (many do not). - Using Non Testamentary Transfers
Transferring the bulk of the property outside of the will reduces the incentive to contest the will. Inter vivos gifts and multi-party accounts are more difficult to contest because the funds are often dissipated and difficult to trace. - Using Credible Witnesses
Secure long time friends of the testator and his or her family to serve as witnesses. Choose witnesses who are articulate and will be liked by a jury. It is also a plus if the witnesses are well respected by the potential will contestants. - Using Corporate Fiduciaries
If disinterested corporate fiduciaries serve in executor and trustee positions, conflicts with beneficiaries will be reduced. Disgruntled beneficiaries are less likely to challenge the actions of a neutral party as opposed to a disliked family member.
Will contests can never be completely eliminated, but the risk of a contest can be reduced with advance planning.
