I want to provide some suggestions on how to protect your estate planning documents from challenge after you’re no longer here to defend it.
Let’s say you want to leave more to one child than another and you’re worried that the disinherited child may challenge your documents. Consider taking the following precautions:
- Understand the most common challenges could be brought:
- fraud (it wasn’t your signature);
- undue influence (someone pressured you);
- lack of capacity (you didn’t understand the nature and consequences of your actions);
- Ambiguity of the language (your wishes weren’t clear and open to various interpretations).
- Fraud can be overcome by having your signature later analyzed by a handwriting expert, but a notary and/or several witnesses are less expensive. You can also have a video made while you’re signing the documents showing it was YOU.
- Undue Influence may be overcome by showing that the person accused of pressuring you was not involved in the creation of your documents in any way. They should not even drive you to the appointment with the notary. It helps if they are not your caregiver and you live independently. It helps if you video an interview of you where you explain why it was YOUR idea to make the will or trust the way you did.
- Lack of Capacity can be overcome using the following approaches:
- Video the signing and answer lots of questions showing that you understood the nature and consequences of the documents;
- Have an attorney prepare the documents and be your witness;
- Have more witnesses present who can vouch for your mental capacity;
- Have a neuropsychologist test you and produce a favorable report that supports your understanding at the time.
- Lack of Clarity must be avoided during the drafting of the document to make sure the language is clear. Attorneys are trained to use special terms of art that have been time tested in the courts already so there is no question what you intended. That doesn’t mean you have to hire an attorney to draft ALL your documents, just the parts that need special attention for clarity.
- No Contest Clauses are great if used properly. A no contest clause usually says that if someone contests your wishes, they will be disinherited. Well, if they are already disinherited, this clause would have no effect on them – assuming they successfully challenged the document and had it thrown out. You may want to add a little “bite” to the clause by gifting a sum of money to the person. For example, if you left $20,000 to your otherwise disinherited child, the person would be forced to choose between inheriting $20,000 OR risk losing that money to contest the trust in hopes of getting more. If you choose to use a no-contest clause, please limit its reach the person(s) you are worried about – that way, your other children whom you are trying to protect won’t inadvertently be disinherited when they walk into court to get help. This optional clause is provided in the templates at YourLegacyLives.com in case you want to include it.
- Multiple Amendments. Each time someone contests your trust in court, it costs thousands of dollars for them to hire an attorney. If they’re successful at getting your most recent document thrown out, then your next most recent will or trust stands as your final. If you have several versions from the past that all say pretty much the same thing (minor changes), then the person contesting your wishes would face years in court, hundreds of thousands of dollars and an uphill battle. It wouldn’t be worth it. So, you may want to update your will or trust every 6 months or so to create this kind of barrier.
No estate plan is ever 100% bulletproofed, but you can certainly create barriers to future contests.