As an estate planning attorney with over twenty years of experience, I have been on both sides of an estate fight. Sometimes I?ve represented clients upset about the terms of the will or trust. Other times, I have been involved in defending the terms.
I can state without hesitation, when planning you want to use an estate planning attorney that is experienced and sensitive to what methods of planning can avoid fighting. Having said this, there are times when genuine questions exist and further inquiry should be made regarding the validity of the terms of the estate plan.
The following are some reasons that a will or trust can be contested.
? The will or trust was not properly executed – A will or trust can be contested on the grounds that it was not properly drafted, signed, or witnessed in accordance with statutory legal requirements. Generally, a will has more formalities to follow than a trust.
? The testator or trustor was not mentally competent – Competency to make a will means that the testator understood the nature and extent of his assets and knew the parties to whom the assets would be distributed. A will may be declared void if it can be proved that the testator was senile, delusional or of unsound mind when the will was created. The standards for executing a trust are generally the same. Incompetence may be proven by medical records, irrational conduct of the testator and the testimony of those who observed him/her at the time the will or trust was executed.
? The will or trust was the product of fraud or undue influence – Undue influence occurs when the testator or trustor is compelled or coerced to execute the will or trust as a result of improper pressure exerted upon him/her. Fraud occurs when a false statement is knowingly made causing the testator or trustor to sign a will or trust in a different manner than he/she would have if the statement had not been made.
? A second, more recent, will or trust is discovered – If proven valid, the newer will or trust would replace the older document.
? Miscellaneous reasons – There are other circumstances under which a will or trust can be contested. These include suspicions of forgery, the existence of pre-existing contracts relating to asset distribution that may nullify the distribution in the will or trust, suspicious circumstances that could cause the distribution set forth in the will or trust to be looked upon as lacking credibility, or the failure by a personal representative or trustee to properly carry out the instructions provided in the will or trust agreement.
It is important to note that there are time constraints and procedural deadlines after which you may not be able to contest a will or trust.
Although good planning is the best remedy to avoid a fight, sometimes this has not occurred and legal assistance is needed to pursue a claim for problematic estate planning. Hopefully, this article can provide guidance and help for those contemplating their own estate plan or the planning of another.
Jeffery J. McKenna is a local attorney serving clients in Nevada, Arizona and Utah. He is a shareholder at the law firm of Barney McKenna & Olmstead, PC, with offices in Mesquite and St. George. If you have questions you would like addressed in these articles, you can contact him at (435) 628-1711 or jmckenna@barney-mckenna.com.