Starting out afresh

How To Avoid A Will Contest

by Rainier Van Der Harst

When you write your last will and testament, the last thing you want is for your wishes to be contested by your beneficiaries after your death.  In order to avoid this situation arising, take note of the following helpful tips.

Write your will when you are fit and healthy

A very common ground for contesting a will is the accusation that the person writing it was not of sound mind when they did so.  Typically this happens when the deceased was elderly at the time their will was written and could have been suffering from dementia or some other similar disease.

Even if you think that you may have to update your will in years to come, it's best to ask a lawyer to draft your will for you while you are young and fit.  This effectively avoids possible contests later.

Place a 'no contest' clause into your will

You can include a 'no contest' or 'terrorem' clause in your will or irrevocable living trust.  This clause ensures that anyone who contests your estate will automatically receive nothing from your estate.  However, for such a clause to be enforceable, it must be correctly written and you should always ask your lawyer to do this for you to ensure that it's done properly.

Take out a revocable living trust

Another way of preventing will contests is by taking out a revocable living trust.  This type of trust is not made public knowledge, whereas a will is made public once it is filed with the probate court.  A revocable trust can easily be amended and updated throughout your life, making it easier to remove and add beneficiaries if you want to.

A discretionary lifetime trust is also a good way of controlling how an inheritance is used.  For example, if you wanted to ensure that your son benefited from money that was left to him in your will but you didn't want his partner to have access to it, you could stipulate this in the terms of the trust.  You could even stipulate what the money is to be spent on if you wanted to.

In conclusion

If you are concerned that some of your beneficiaries may seek to contest the terms set out in your will, you can prevent this by taking the steps outlined above.  Your estate planning is very important and it is always best to seek the advice of an experienced lawyer in this area rather than taking the DIY route, especially if you have concerns that your will could be contested.