By Tiffany A. O’Connell,
JD, LLM, CELA, AEP
principal attorney,
O’Connell Law LLC

Challenges to wills andChallenges to wills and trusts are more common than you might think. Here are several ways to help discourage disputes and help ensure your wishes are carried out.

Try to Treat Siblings Equally

If you have two or more children, leaving each of them the same amount can eliminate one of the main reasons wills and trusts are contested in the first place. Another potential problem is when inheritances are left to grandchildren, and one sibling has more children than the other. If you follow the equality principle, this and many other potential conflicts can be avoided.

If You Gave a Significant Amount of Money to One of Your Children In The Past, Your Estate Plan Should Reflect That

If your goal is to treat all of your children equally, you might want to “balance” a significant gift to one child in the past by deducting it from the inheritance you ultimately leave to that child. If you do that, consider explaining why you are making such a “balance” adjustment.

Consider a “No Contest” Clause

If you think one of your children (or that child’s spouse) might dispute your will, a no contest clause can make the risk of challenging your will outweigh the potential benefit of doing so. Generally, a no contest clause stipulates that if a beneficiary contests the will’s validity or its provisions, his or interest in the will is forfeited. If you are only leaving a token amount to a beneficiary, consider making sure that the token is large enough to help discourage the person from challenging your will. In other words, if the amount is tiny, they may not care about the no contest clause because it doesn’t matter if they lose out on this tiny amount. We’ll oftentimes refer to this as a ‘dangling carrot’.

Prove That You Are of Sound Mind 

Challenges to wills often involve allegations that the maker of the will was not of sound mind when the will was signed. You can help prevent this by obtaining a written evaluation from a treating physician and a psychiatrist stating that you are indeed of sound mind when you sign the will.

If You Must Disinherit Someone, Note It Clearly In Your Will

Our children sometimes disappoint us. When the level of disappointment is so severe that the only solution seems to be disinheriting a child, make sure your decision is noted in your will. You don’t have to give a reason for your decision, but you should make it clear that your decision was intentional.

Talk to Your Loved Ones ‘While The Waters Are Calm’

More often than not, we hear that a loved one did not talk with their family about their estate plan during their lifetime. In such instances, we learn that a family member doesn’t understand why something was done a certain way (and the person who did the estate plan is no longer alive to explain). If you plan to treat someone differently, and if appropriate (because, sometimes it isn’t), consider talking with that person while you are still well to get their take on what you plan to do and so that they can understand why you are doing it a certain way. They may be totally fine with what you are doing. You may find out, however, that their feelings would be very hurt if you did as you planned. Talking with them ‘while the waters are calm’ can help you determine if your plan would keep family dynamics in harmony or if it would potentially destroy any relationships.