A last will and testament or “will” is a part of your estate plan which allows a person to state specifically how they want their estate to be handled and divided in the event of their death. In a perfect world, the express wishes stated in your will are clear and will be honored. However, things are seldom perfect and when it comes to estate planning there can be issues which may lead to someone bringing a legal challenge or “contest” to your will. Luckily, there are some actions you can take which will help keep your will from being contested.
No-Contest Clauses
In Michigan, you may include a no-contest or “in terrorem clause” or “terror clause” in your will which essentially says any beneficiary who tries to challenge the will can be disinherited. However, these clauses can be determined by a court to be unenforceable if there is a good reason in the eyes of the court to challenge the provision of the will or will itself. For example, if there is evidence the person making the will lacked capacity or was subject to undue influence, the court may find that the no-contest clause is not in effect because the person bringing the challenge has a valid reason for doing so.
Proper Execution
One basis for contesting a will is to allege that it was not properly executed. If a court finds this to be the case, your will can be invalidated, and your estate may pass to beneficiaries according to the law rather than your wishes. Michigan, like all states, has specific requirements as to how a will must be executed. For instance, here the will must be signed in the presence of two witnesses.
Talk to Your Loved Ones
One of the best ways of keeping beneficiaries and possible beneficiaries from challenging your will is to talk to them about your decisions. By hearing directly from you, the beneficiaries receiving a disproportionate share of the estate may reach an understanding which will keep them out of court. If at all possible you want to have this discussion near the time you are signing your will.
Anticipate Litigation
It may be that no matter how many preliminary steps you take to prevent your will from being contested, there may be some individuals who are intent on raising a challenge. One way to dissuade these disgruntled individuals is to consider ways that they may challenge your will and have evidence ready before the challenge can be brought. For example, a common challenge to a will is that the person making it lacked mental capacity. Near the time your will is executed, if there is any question as to your capacity, you could submit to a mental health exam by your physician and keep the results with your will. There could also be a claim that you were unduly influenced by another. Being certain that a person who might be accused of influencing you is not present during the drafting or execution of the will may help refute this argument.
Your will is one of the most important documents you will ever sign. As such you will want for your final wishes to remain undisturbed by the legal process. By taking steps to prevent a will contest you will help ensure that your estate is distributed according to your direction and that your chosen beneficiaries will receive their inheritance without the burden if litigation. A critical piece of planning for your estate is to seek the advice of an experienced estate planning attorney. We have experience with helping draft wills and understand the laws pertaining to estate administration. Please contact us online or by phone if we may be of assistance.