Want your paperwork to matter when someone finally reads it?
Most families think the hard work is over when a will is signed. It gets put in a drawer. Everyone is informed “it’s taken care of,” and life goes on. Someone dies…and it all falls apart in probate court.
Here’s the uncomfortable part:
A poorly written will can do more harm than good. It breeds confusion. Creates arguments. Gives an unhappy relative something to attack.
The good news?
Nine times out of ten, every successful Will contest is based on one of a few errors. And they are all avoidable errors.
What this guide covers:
- Why wills get challenged in the first place
- The mistakes that make a will easy to attack
- Where a living will advance directive fits in
- How to keep an estate plan out of court
Why Wills Get Challenged In The First Place
A will contest is a lawsuit arguing that a document should not be allowed to be enforced. Someone with money at stake stands up and cries foul, and then a judge cleans up the mess.
Most challenges are built on one of four claims:
- The person lacked the mental capacity to sign
- Someone pressured or manipulated them into signing
- The document was not signed and witnessed the way state law requires
- The will was forged, or a newer version exists somewhere
Rare? Doesn’t sound like it? It is. One reason why is simply because so few families have anything prepared. One recent article showed that 56% have no estate plan at all. No will. No trust. No power of attorney. When the paperwork is non-existent or thrown together from a google search, conflicts become ripe to happen.
A Will Only Covers Half The Job
Before getting into the mistakes, one thing needs clearing up…
A will dictates how property is handled after death. While you are alive (and incompetent to make your own decisions), nothing. That’s what a living will advance directive is for. It documents your wishes for medical treatment and designates who will make medical decisions for you.
Skip the document and your family is squabbling in a hospital hallway instead of a courtroom. The disconnect is massive — research from Pew revealed that only 31% of U.S. adults have drafted a living will or advance health care directive. About the same percentage have an actual will. Meeting with an estate planning attorney in Summerville, SC is the easiest way to have your will, living will advance directive, and powers of attorney created so they work together rather than contradict each other.
Now… the mistakes.
The Mistakes That Make A Will Easy To Contest
Using A Generic Template Off The Internet
Free templates are tempting. They’re also written for nobody in particular.
States differ on rules regarding witnesses, notarisation, and the actual words that transfer property. Forms that are valid in one state may be invalid in another across state lines. Additionally generic forms rely on ambiguous language such as “personal effects” without defining it.
That vagueness is exactly what a challenger’s lawyer goes hunting for.
Getting The Signing Ceremony Wrong
This is going to be surprising…
An impeccably drafted will can be invalidated because of the signing. Witnesses failing to actually witness the signing. Beneficiary witnesses. Forgotten dates. Lost pages.
They are boring details and they kill motivation all the time. Usually a well written document contains:
- Two witnesses with no financial interest in the estate
- All parties physically present at the same time
- A self-proving affidavit signed in front of a notary
- Every page accounted for and stored as one document
Waiting Until Health Is Already Failing
Here’s something most people don’t consider…
Signing a will while hospitalized or in the final weeks of an illness is practically begging for a will contest. The chronology becomes the exhibit. Medical records are subpoenaed. Nurses are deposed. It becomes a battle over whether she knew what she was doing.
A will created while you’re healthy and then reviewed every few years is much harder to contest.
Letting One Family Member Run The Process
Probable undue influence is probably the most common reason to contest a will. Probable undue influence typically manifests itself in the same manner as any other undue influence.
One adult child drives parent to appointment, attends meeting, does all the talking, walks away with the lion’s share. Wasn’t shady when everyone was alive, but looks bad either way.
The solution is easy. Keep the beneficiary away from the room and drafting.
Ignoring The Living Will Advance Directive
A will deals with finances. A living will or advance directive deals with the months leading up to that when decisions are made regarding ventilators, feeding tubes, long-term care, etc.
Without that document, family members begin speculating. Speculation leads to conflict. And a family who fought over medical care will likely continue fighting over the estate.
Make sure the plan covers:
- Which treatments are wanted and which are not
- Who holds health care power of attorney
- Who serves as backup if that person can’t
- Where the originals are stored
Never Updating After A Big Life Change
Life moves. Paperwork doesn’t.
Marriages, divorces, births, deaths, and home sales all change an estate. Naming an ex-spouse as executor or leaving them property sold decades ago will create confusion immediately. Beneficiary forms on retirement plans can be just as egregious, because they trump the Will entirely.
Review everything after any major change, and at least every three to five years.
Keeping The Whole Thing A Secret
Surprises are the fuel for will contests.
No one contests a will that they expected. An heir that receives less than anticipated will, upon hearing at the reading, immediately suspect foul play. If that reasoning was provided years before, however, the heir typically does not contest.
A short, honest conversation now prevents a very expensive one later.
Building A Plan That Holds Up
None of these fixes are complicated. They just have to happen before they’re needed.
The basics of a contest-resistant plan:
- Draft early, while health and capacity are not in question
- Follow state execution rules exactly
- Use clear, specific language with no room for interpretation
- Pair the will with a living will advance directive and powers of attorney
- Keep beneficiary designations in line with the will
- Review after every major life event
- Tell the family what to expect
Bringing It All Together
Rarely are wills contested based on their content. They are more likely to be contested due to the circumstances surrounding their creation – hasty execution, careless signing, ambiguous language and will silence at the dinner table.
Something that takes a few hours to fix. Allow it to remain unfixed and you can lose an estate years in court and thousands in legal fees.
Have the will done right. Attach the living will advance directive. Update each as changes occur in your life. Then inform family you have a plan and where it is located.
That’s the whole strategy. Simple, unglamorous, and almost impossible to argue with.
