A last will and testament, or “will,” is a key part of your estate plan that allows you to specify how you want your estate handled and divided after your death. In a perfect world, the wishes expressed in your will are clear and will be honored. However, things are seldom perfect, and estate planning can sometimes lead to disputes, including legal challenges or “contests” of your will. Fortunately, there are actions you can take to help minimize the risk of your will being contested.
No-Contest Clauses
In Michigan, you may include a no-contest or “in terrorem clause” (sometimes called a “terror clause”) in your will. This clause essentially states that any beneficiary who challenges the will may be disinherited. However, courts can determine these clauses unenforceable if the person challenging the will has a valid reason—such as evidence that the testator lacked capacity or was subjected to undue influence.
Proper Execution
One common basis for contesting a will is the claim that it was not properly executed. If a court finds this to be true, your will may be invalidated, and your estate could pass according to state laws rather than your wishes. Michigan, like all states, has specific requirements for how a will must be executed—for example, it must be signed in the presence of two witnesses.
Talk to Your Loved Ones
One of the best ways to prevent disputes is to openly discuss your decisions with your beneficiaries and possible beneficiaries. Hearing your reasoning directly from you can help those who might receive a smaller share of the estate better understand your choices and avoid litigation. Ideally, have these conversations near the time you sign your will.
Anticipate Litigation
Despite your best efforts, some individuals may still challenge your will. One way to discourage such challenges is to anticipate possible grounds for contest and prepare evidence accordingly. For example, a common challenge is that the testator lacked mental capacity. If there is any question about your capacity at the time the will is executed, consider undergoing a mental health evaluation by your physician and keeping those results with your will. Similarly, claims of undue influence can be countered if the person suspected of exerting influence was not present during the drafting or signing of the will.
Your will is one of the most important documents you will ever sign. Taking steps to prevent contests will help ensure that your estate is distributed according to your wishes and that your beneficiaries receive their inheritance without the burden of litigation. A crucial part of estate planning is consulting with an experienced estate planning attorney. We have the knowledge and experience to help you draft a will that reflects your intentions and complies with legal requirements. Please contact us online or by phone if we may be of assistance.
