How to avoid challenges to a will or a trust

Natalia Vander Laan

Natalia Vander Laan

 

Estate planning documents such as a will or trust can be challenged by a dissatisfied family member after the creator’s death. If a challenge is successful, the creator’s intended distributions will be revised. Even if a challenge is unsuccessful, the process itself will be expensive and ultimately reduce the value of the estate. Therefore, it is important to take steps to avoid a challenge to one’s will or trust.

Even before the execution of the estate planning documents, it may be a good idea to talk to one’s family about one’s estate plans. Oftentimes, a challenge to the estate planning documents is the result of a misunderstanding or a different interpretation of the creator’s intent. Clearly stating one’s plan and desired distributions helps to avoid misunderstandings and conflicts in the future. 

The first step in moving from ideas to an estate plan is ensuring that the ensuing will or trust is properly executed.

It is crucial to follow all the requirements related to the signing, notarizing, and witnessing of the estate planning documents. Otherwise, a court may determine that the document is invalid and the estate may pass by intestate succession determined by the statute. 

An estate planning document should also include a “no-contest” clause. This clause provides that if a person challenges a will or trust and loses, then the challenger will receive nothing, or a very nominal amount. Including a “no-contest” clause can effectively discourage potential challenges to the estate planning documents. 

Additionally, in Nevada, a witness to a will can also sign a self-proving affidavit, wherein the witness swears that he or she saw the testator sign the will, and the testator was of sound mind and not unduly influenced to execute the will. The affidavit is then notarized. Such affidavit can be helpful in defending against challenges to the testator’s capacity. 

In some situations, before signing a will or trust, a person may take certain steps to prove their sufficient mental capacity to make estate planning decisions. If a person suspects that their wishes might be contested based on a challenge to their capacity, a person can undergo a medical evaluation to confirm their ability to make sound decisions. Then, the results of the medical assessment could be shared during the probate proceeding or trust administration. 

Another way to prevent challenges to one’s will or trust is to remove any appearance of undue influence. Therefore, family members should not be involved in the process of creating the estate planning document. The family members should not make arrangements for appointments with an attorney, should not be present during the appointments, and should not be part of the discussion regarding the estate planning arrangements. If the assistance of family members is absolutely necessary, a certificate of independent review should be obtained. An independent attorney can review and certify, in writing, that the transfer was not the product of fraud, duress, or undue influence.

There are some additional, less traditional, precautionary measures that can be taken to discourage challenges to one’s estate planning documents. For example, a person can record a video statement explaining one’s intent and highlighting sufficient mental capacity. Also, a video of the execution of the estate planning documents can also be created to show sufficient mental state and no duress. 

If a challenge to a will or trust is anticipated, it would be wise to use the services of an experienced attorney to prepare and execute one’s estate planning documents in order to protect against any potential issues.

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