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Although ripe for courtroom drama, will challenges are rare. According to Findlaw, only 1% of wills are subjected to a challenge. However, will challenges do exist. 

First of all, it is difficult to make a successful challenge to a will. To start a challenge, a person must have standing. This means they are an heir, a spouse, a child, a creditor, or someone named in the will.

Secondly, a person must also have some stake in the outcome. This means they will lose or gain something if the will is considered valid.

However, the will challenger has the burden to prove the will is invalid. Reasons for a will to be considered invalid is if it was not signed or witnessed properly. Or if the will was done under duress, fraud, or the decedent lacked testamentary capacity. Testamentary capacity means sound mind at the time they made the will. Note, if the decedent made a will when they had testamentary capacity but later developed dementia or Alzheimer’s disease, the will is still valid.

If you have concerns that someone might challenge your will because they don’t like what they receive or think your distribution is unfair, there are steps you can take.

What you can do to avoid a challenge to a will

Consider a “no contest” clause

This clause states that any person who challenges the will and loses will not inherit anything. Consider using this clause to  discourage any disgruntled family member from challenging your will. Not all states uphold “no contest” clauses, however.  So, if the challenger loses they might still receive what they were originally entitled to inheriting.

Use an estate planning attorney

Check your state probate laws for the correct way to sign and witness a will. If you have an estate planning attorney, they will do this for you. An estate planning attorney can also take steps to prove testamentary capacity.

A will can also be held up in probate court because of errors or ambiguity. Oftentimes this is a result of “do-it-yourself” estate planning.

Be transparent with your family members

Oftentimes, a challenge comes from an emotional place. An heir may feel slighted and want to change the disposition of assets. Talk with your beneficiaries about your reasons for your distribution.

For example, you might leave more money to your daughter with a lifelong disability than to your successful son. Discuss your plans with your loved ones to avoid hurt feelings and surprises later.

Again, challenges to a will are not the norm. Make sure you follow these steps to make sure your will stands up to scrutiny.

Parts of this article have been excerpted from Estate Planning for the Sandwich Generation: How to Help Your Parents and Protect Your Kids.

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