Is there really any such thing as an “uncontestable” Will? The simple answer is no, but you can certainly takes steps to make such a challenge extremely difficult.
A lot of people think that putting a certain amount of time, work, or even money into drafting estate planning documents can prevent a troublesome family member from challenging a Will. That’s not how things work. in Pennsylvania (or in most states), we have a self-policing system of determining the validity of someone’s Last Will and Testament. What that means in a nutshell is that, when someone dies and their Will is offered for probate, legal procedures require that the individual’s next-of-kin be given notice that the estate has been opened. As such, they will be given the opportunity to make a legal objection or challenge to the Will that has been presented.
For instance, we’ve had clients who are not close with their families, who have no children or spouse, and who are determined to make sure that their nieces and nephews or other particular family members will inherit nothing when they die. However, what they need to understand is that, regardless of how clear their wishes may have been spelled out in their Wills, their surviving family members will have an opportunity to raise objections or contest the Will should they elect to do so. This certainly doesn’t mean that they will win or that they will inherit anything from the estate, but they can certainly cause a lot of problems if they are inclined to.
Many of our clients find it hard to believe that their Will could be contested, but there are certainly some important steps that a client who is planning to disinherit one or more family member can take during their lifetime in anticipation of such a challenge. Here are three important tips:
1.) Be realistic about whether or not you such a challenge to your Will is likely. Your lawyer should help you to identify who all of your next-of-kin might be and he or she should have a candid conversation with you as to what the likelihood is that one or more of them might come out of the woodwork so to speak at your death. Keep in mind also that the lawyer who’s drafting your will is likely also going to be a witness on the document. This can be extremely important in the event of a Will contest because he or she is likely to be a very powerful witness in the event of such a challenge. The more your lawyer knows about the individuals you’re intending to disinherit, the more powerful their testimony is likely to be should the matter end up in court.
2.) If you know you want to disinherit one or more specific individuals, make sure you meet with your lawyer alone. Namely, if you know that you want to disinherit your brother and leave everything to your sister instead, it’s probably not a very good idea to your sister with you when you go to meet with the attorney. Why you ask? Because doing can potentially create the appearance of an impropriety or undue influence that could cause problems should the matter end up being litigated down the road. Remember, the less involvement others have when you’re making your estate planning, the better off you’ll be. Should you choose to share the contents of your estate plan with one or more of your family members, you can always do so once it has been put in place.
3.) Finally, is you think that it’s likely that someone may raise a challenge to your Will after your death, you probably want to make sure that your Executor has access to certain funds to help finance such anticipated litigation. Will contests can take months and even years to resolve. If all of your assets are tied up in probate process, it may make it extremely difficult for your Executor to properly defend such a challenge. As such, you might want to consider naming our Executor as a beneficiary or joint owner of one or more of your accounts. Doing so would ensure that they would have access to cash immediately upon your death with the presentation of nothing more than the death certificate. This could prove to be crucial should they end up having to defend a Will contest.
At the end of the day, it’s important for you to be honest and up front with your attorney about whether or not you feel it’s likely that someone might challenge your Will. If so, choosing the right lawyer to discuss that with and to prepare your estate plan becomes all that more important.
American Wills & Estates has been Pittsburgh & Western Pennsylvania’s trusted source for Estate Planning and Probate Estate Administration law for over 25 years. We take great pride in serving our clients with competency, compassion and care during a difficult time. We offer free legal consultations and provide most of our estate planning services on a flat fee basis. We have seven convenient office locations and offer home, hospital, evening and weekend appointments upon request. Give us a call today at (412) 381-7370 or visit us online at www.americanwillsandestates.com
