CAN YOUR ESTATE AVOID THE TRIALS AND TRIBULATIONS OF INFIGHTING AFTER YOU PASS?

The time after someone passes away is supposed to be a period of mourning, acceptance and hopefully regrowth. I think it’s fairly safe to say, however, that we’ve all seen at one point or another circumstances following the loss of a loved one (whether yours or someone else’s) degrade into nothing more than a money grab. I don’t care if you’re the Brady Bunch or that prototypically dysfunctional family, money seems to have a way of bringing out the worst in people. When that happens, greed, shortsightedness and/or one’s own sense of entitlement often lead an individual to the precipice of challenging the contents of their loved one’s Will. Are there times when a will contest is a valid alternative? Certainly. At other times, however, it’s nothing more than an effort to get more “stuff” out of the estate of your loved one.

What, if anything, can be done to avoid this possibility? As someone planning his or her estate, you’re often in a unique position to know your family well enough to sense the possible danger signs that a Will contest following your passing could be on the horizon. Whether you see trouble brewing from the get go or whether you simply wish to avoid infighting as a possibility down the road, you do have some options going forward to minimize the chances of it occurring.

What if you could dissuade someone from filing a Will contest with nothing more than a few written words? Sound appealing or even too good to be true? While not for everyone, the inclusion of what’s known as a “No Contest Clause” or “Terrorem Clause” in your Will might have just that effect. At its most basic level, no contest clauses state in no uncertain terms that if anyone files a lawsuit challenging the validity of your estate plan, that person will receive nothing from the estate. Yep, you heard me right. If someone challenges the Will in the midst of a terrorem clause, that person is entirely cut off from taking anything from the estate.

Pretty powerful stuff, huh? Is it an absolute deterrent? Of course not, but it will almost certainly give anyone contemplating a challenge pause to reconsider before filing. At the end of the day, you are always free to challenge a Will, but where a terrorem clause is present, the challenger must be cognizant of the fact that he or she will receive nothing if that challenge is lost. While New York recognizes the enforceability of no contest clauses, not all states do, so be sure to consult with local counsel to determine whether terrorem clauses are a valid and appropriate option for you.

If we take a step back and look more generally at the grounds on which Wills are typically overturned once challenged, we would see that the capacity (or rather incapacity) of the testator is often key to the challenge. While not directly a deterrent for challenging a Will, I would offer the following as guidance to at least ensure your wishes are carried out if your Will ever is challenged. The lesson is this: start soon and revisit often.

What does that mean exactly? Simple. In order to successfully challenge a will, the opponent must demonstrate that the Will is not valid for at least one of any number of reasons. Those reasons include facts like the Will was executed under duress or the testator didn’t have the mental capacity to execute the Will. With those facts in mind, I would suggest that it is wise to undertake your estate plan as early as possible – when there’s no question about your capacity – to ensure that your wishes won’t be set aside. To that end, I would also suggest that any good estate plan needs to be revisited often. Estate plans are organic and need to be updated occasionally to reflect major (and minor) changes in one’s life. It’s all about making these changes when you have the ability to make informed decisions. If you do so, short of your estate plan violating some established public policy, your wishes will become manifest and your intentions will be given full effect.

I would offer testators one final strategy for avoiding familial strife once you pass. Another major reason that Wills are challenged is the element of surprise. If the beneficiaries of a Will learn about a decedent’s wishes only after death and those stated wishes are a shock to one or more beneficiaries, you unfortunately have the home-grown makings for a challenge. Individuals who feel slighted by a decedent or who simply don’t understand why their loved one did what he or she did, are prone to lash out – often times in the form of a Will challenge. Such being the case, a certain level of transparency in one’s estate is often times a good idea. I’m not suggesting that testators go into gory detail about their assets with their loved ones, but there is something to be said for discussing your estate plan so they understand your wishes in advance of your passing, not to mention your rationale for distributing your estate in the manner you’ve chosen. No strategy will entirely eliminate the possibility of a challenge, but depending on your particular circumstances, a modicum of transparency could well remove any surprises that might otherwise result in a contest.

Any strategy aimed at minimizing the likelihood of a Will contest should be discussed with counsel. Depending not only on your particular family situation but also on the applicable laws and public policies of your jurisdiction, the choice of strategy(ies) is critical. Always consult with an attorney about your particular circumstances to ensure you understand not only your options, but the possible ramifications of those options.