Will Challenges and How to Avoid One

When beneficiaries or anyone interested in an estate question the validity of a Will, he or she may make a Will Challenge. A Will Challenge is made through the Surrogate’s Court when the Will is offered for probate. The person questioning the validity of the Will must file a claim, or their objections, in court stating why they believe the Will is invalid. The person making the claim is the Objectant. The Objectant must have some evidence or will most likely lose the case.

There are only a certain number of ways that the Objectant can object to the Will. The first is if they are claiming that another Will is in existence that was created after the Will that is being offered for probate. Typically the new Will would revoke the prior Will, and therefore invalidate it.

The other ways is to attack the offered Will itself. There are three ways to do this. The first is to claim that the Will was not executed properly and therefore invalid. When the Will execution is supervised by an attorney, it is presumed to be executed validly and the Objectant must then rebut this presumption. This is an uphill battle. The second way is to claim that the testator, i.e., the person who executed the Will, did not have the prerequisite mental capacity to execute the Will. The third way to object to the Will is to claim that the testator was under undue influence and/or duress at the time the Will was signed.

An estate cannot be settled while a challenge to the Will is being heard in court. All the beneficiaries of the estate must wait to receive the inheritance being passed in the Will until the court decides whether the challenge is justified or the challenge is thrown out of court.

There are three typical ways to minimize, if not avoid, a challenge to your Will. The simplest way is to talk to loved ones and relatives about your intentions. When people know what to expect, they are less likely to question the Will when it is finally disclosed. Those discussions also make it much more difficult for anyone to claim that you did not have capacity to execute your Will or that you were under any undue influence or duress at the time.

The second way is to make sure that the drafting attorney adds a No Contest Clause in your Will. This Clause states that if a person challenges your Will and they lose the challenge, they are deemed to have pre-deceased you and therefore will lose whatever inheritance they were getting under the Will. It works fairly well to dissuade many potential Objectants. Of course, if the Objectant wins, the No Contest Clause along with the rest of the Will is invalid and thrown out.

The third way is a bit more complex but more effective if you are planning on having unequal distributions in your Will or disinheriting an heir altogether. This is by not using a Will as your main method of distributing your assets to your heirs. The simpler method of this can be done by making sure all of your assets have another name attached to the asset. This can be either joint, via a beneficiary designation or with an “in trust for” designation.

A more sophisticated method is used if there are multiple beneficiaries or varying assets. This would be to set up a revocable trust and re-title all of your assets into the name of the trust. Then the trust controls the assets, not the court. You don’t have to worry about which asset is going to whom, just how much or what percent of your total assets are going to each individual. If there is no Will being offered in court, there can be no challenge to it. Challenging a trust in court is much more difficult.

Also keep in mind that when a Will is challenged, it is the named Executor’s job to defend it. The estate typically pays the attorney fees associated with defending the Will, which means the value of the estate can be diminished by a long court process. Using a revocable trust virtually eliminates this cost as there is no longer a Will to be challenged.