MORE WILL CONTESTS, continued

Preventive Tips

All Will contests are not brought by greedy, undeserving children. Some are, indeed, valid and serve the purpose of undoing fraud, forgery, and other criminal schemes, as well as the rare case of short-sighted attorneys who draft Wills for new clients at a third party’s request (see Boyd v. Bowen, 806 A.2d 314 (Md. 2002)) or provide Wills via mail to clients they’ve never seen personally. The goal here is to high-light where the draw the line.

Revocable Living Trusts

In addition to the tips provided above, other options include advising a revocable living trust rather than a Will in a contentious family situation where privacy of the disposing documents outweighs the additional costs of a trust.

Non-probate Assets

Inter vivos re-titling of assets to make them jointly owned, to create life estates, or to make assets subject to a designated beneficiary may be advisable where the contention is not coming from a spouse (see Knell v. Price, 569 A.2d 636 (Md. 1990) where non-probate assets over which the decedent retained control were made available to the surviving spouse’s elective share). In cases involving spouses, pre- or post-nuptial agreements are urged.

Etc.

Other "tips" abound, like having the testator send disinherited heirs a check on the same day the Will is executed, to make it difficult for the heirs to claim that the testator had capacity to make a completed gift but not to execute a Will. Some attorneys advise involving children in the elder’s estate plan to avoid surprises later, but this, like videotaping, can be a two-edged sword. This author’s practice is to send a draft of the document for the client to review, make requested changes, uncover questions, etc., and then discuss the final document prior to execution. Use of an in terrorem clause along with a bequest substantial enough to halt the potential contestant may be an option (cf. Md. Annot. Code §4-413 voiding the clause if contestant has probable cause to contest).

Conclusion

This article has listed several precautions lawyers can take to decrease the likelihood of Will contests when helping today’s elderly plan their estates and in view of the substantial increase in the number of Will contests that is likely to occur as baby boomers begin to inherit from their parents. The most important precaution is to be alert to the many pitfalls that await the unwary drafter.

Click here to return to the beginning of the article.

The information presented in this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .