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Will Contests – Sometimes They Are Unavoidable

Long a staple of TV drama, real-life will contests offer plenty of emotion. Big bucks and celebrity will contests all make headlines, but there is no shortages of more garden variety will contests in every jurisdiction. What they have in common is jealousy, vengeance, rivalry and just about every negative emotion under the sun.

Small estates aren’t often contested – unless someone is more interested in retribution than money – because will contests are expensive. While the testator has shuffled off this mortal coil, a will contest is a nightmare for those he or she leaves behind.

Even the Best Estate Planning Can Go Awry: James Brown and Robin Williams

Singer James Brown died in 2006, but his will is still in dispute. The Godfather of Soul left his millions to a trust to provide scholarships to needy children, according to the New York Times. In addition to the scholarships, his will left a substantial of money to six children he recognized, and the will specifically stated any heir challenging the document would be disinherited.

After Brown’s death, some of his children filed suit to overturn the will and boot the executors. They claimed Brown used drugs and was unduly influenced by lawyers and others to set up the scholarship trust rather than leave the bulk of the estate to his heirs.

There was also a former wife, whose marriage to Brown was annulled; she claimed Brown had never meant to disinherit her. The state of South Carolina stepped in with a plan, but that also fell apart while legal fees skyrocketed. The irony with Brown’s will is that it was well-crafted, and not put together in a slapdash or unclear manner.

Then there’s the Robin Williams will battle. The actor left an approximately $100 million estate when he died in 2014. His survivors include three children and his third wife – not their mother. Williams was another celebrity with a well-thought-out estate plan.

At the time of his death, he was married to wife Susan Schneider for just three years, and she had signed a prenuptial agreement. While his will left his estate to a trust benefitting his children, he added another trust for his wife, leaving her their home, “contents thereof” and funds to keep the property for her lifetime, noted as “all costs related to the residence.”

Within a few weeks after Williams’ demise, lawsuits started flying. The primary issue revolved around the contents of Williams’ home with Schneider, with many items the children claimed was theirs by other terms of the will. A settlement was finally reached, but Schneider told Time magazine she “had to fight to keep my husband’s slippers.”

Avoiding a Will Contest

While there’s no iron-clad, guaranteed way of avoiding a will contest, there are ways to minimize the odds of such a challenge occurring. No matter how well you think your heirs get along, estates can bring out the worst in people. If you know there are family issues, there’s even more reason for concern.

A strong estate plan makes any contest difficult and ensures your worldly goods go to the persons or entities you desired. Here are some ways to reduce the odds of a contested estate:

  • Ensure the will is properly executed. This requires the services of an experienced estate attorney. For extra measure, videotape the signing of the will. That is easy enough to do with a smartphone. If the will is challenged, the video should prove you were competent at the time of signing.  
  • If you do not wish to include a child in your will, the document must acknowledge that fact. For example, actor Henry Fonda left his estate to his wife and adopted daughter Amy. He specifically excluded his famous children Jane and Peter, since they were financially independent and his wife and Amy depended on him for support. Of course, omitting a child from a will usually indicates estrangement, but the will must include the existence of the child and lack of inheritance.  
  • It’s never good for a family member to find out they aren’t included in the will or will not receive what they may consider a “fair share” after your death. Explain your decisions beforehand. If that isn’t practical, make sure the will includes the reasons you left a person out or didn’t divide the will equally.  
  • Use an in terrorem clause. In Latin, this means “in fear” and that’s exactly what it instills in an heir who tries to challenge an estate. Better known as a “no contest” clause, it states that anyone challenging a will or trust is automatically cut out as a beneficiary. The only way such a challenger may benefit from an estate is if the will is declared invalid. Not every state permits an in terrorem clause.

Tolstoy wrote, “Happy families are all alike; every unhappy family is unhappy in its own way.” Whether your kin fall into the former or latter category, your estate planning attorney provides the best advice for your particular situation.

Avoiding a will contest is always best but if things go awry with your inheritance over $500,000 call an experienced Elder Law pro to learn your rights in a confidential no-fee consult. 877.858.8018 or EMAIL US

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