Avoiding a Contest of Wills Within the Family

What happens when your inheritance is not what you expected? If it is surprisingly large, you have nothing to complain about, presumably. But what if another person, perhaps a relative, inherits what you thought you deserved?

If the slight is serious, you may be in for a will contest. And it won’t be fun.

What happens when a will is contested? The person contesting the will must prove that the decedent--the dead person--was under “duress, menace, fraud or undue influence” when the will was signed. That’s not easy to do.

A court will determine the state of mind of the decedent and other circumstances surrounding the signing of the will.

But there are ways to maintain family harmony and minimize the risk that someone will contest your will.

Lawyers who prepare wills usually include a “no contest” clause. It provides that if a beneficiary challenges the will and loses, he is given nothing or a small amount. In other words, if you believe someone may challenge the will, you leave that person a sum of money to “buy them off,” an amount they will lose if they contest the will.

Under such circumstances, contestants usually think twice (or more times) before seeking to defeat a will. Of course, it works as a deterrent only if the amount set aside is large enough to persuade the person not to risk a challenge.

Another way to protect your will is to plan for a contest before you die. In a will contest, psychiatrists, psychologists and other experts usually testify about undue influence, duress, fraud and mental stability.

If you consult such a professional about the time you sign the will, and he or she is satisfied with your mental capacity, then you have an expert witness if the will is contested.

Another but not fail-safe technique involves making a videotape of the signing of the will. It may be difficult to have the videotape introduced into evidence, and the tape may be suspect if it seems too artificial.

One legal procedure, known as declaratory relief, allows parties to a current dispute to have a court rule on future obligations or rights under a written contract. Three states--North Dakota, Ohio and Arkansas--have broadened the concept to allow for a court declaration of the validity of a will during one’s lifetime. But the procedure is rare, according to a recent law review article.

Another recommendation is to sign successive wills. Say, for example, a will is signed in 1988 and another in 1989. If the 1989 will is successfully attacked, the 1988 will becomes the operational one. And so on. The process of successive wills does not require that any new law be passed. It should, however, be used with some discretion and upon the advice of personal legal counsel.