Making Your Will Enforceable

Most people draft their last wills and testaments to leave their entire estate to their children equally.  A Will that leaves the entire estate equally to the decedent’s children is a lot less likely to be challenged after the death of the person making the Will.

This fact comes as a surprise to many people, but Wills are sometimes challenged.  For instance, a child who is disinherited could file a legal action after the death of the decedent claiming that the decedent was mentally incapacitated when he made his Will disinheriting the child or claiming that the decedent was unduly influenced by the child who wasn’t disinherited.  Both of these claims are common theories in Will contest cases.

From my experience, which is quite extensive, many people believe that once an attorney drafts a Will for a person, the Will and its terms are inviolate and cannot be contested.  This is untrue and inaccurate.  If a Will were the product of undue influence or if the decedent lacked mental capacity when he wrote his Will, then the Will would not be the product of the decedent’s free will and would not be his “Will.”

When I mention this fact to people, the client will always say something such as, “Well, this is what I want so no one can dispute that.”  The problem is, and this is a key fact that the client is overlooking, a Will is really a meaningless document until the client dies.  Once the client dies, he is no longer available to say “this is what I want.”  In fact, once the client dies he becomes a blank slate onto which any person can paint a picture.

The child who was disinherited who may have not been a model child could claim that she and the decedent had no issues whatsoever.  Or that she and the decedent had their differences but those differences weren’t that great.

The bottom line is, it’s exceedingly easy for the disinherited child to claim “facts,” and those claims will tie up the decedent’s estate.  Until those claims are resolved, the other children cannot safely distribute the estate.

What then happens in many cases is, after months or years of expensive litigation, the children settle and the disinherited child obtains a portion of the estate.  Now, the decedent may not have been mentally incompetent.  The decedent may not have been unduly influenced.  The Will may truly reflect the free, competent Will of the decedent.  That’s not the point.  The point is, through litigation, the disinherited child has obtained a portion of the estate that the decedent did not want her to obtain.

So, what can clients do to assist their executor in fighting off potential challenges to the decedent’s Will, particularly when the decedent is leaving his estate in an unnatural manner, meaning that he is disinheriting a child or leaving a greater portion of his estate to one child to the exclusion of other children?

The client should be the one who makes the appointment with the lawyer.  The child who is receiving a greater portion of the estate should not be the person calling the lawyer and setting up the appointment.  The client should attend the meeting alone.  If the client cannot drive himself to the meeting, then the driver should wait out in the car.  The client should pay the attorney, not the child.  The child should not come in to meet the lawyer.

If there is ever litigation, the lawyer will be issued a subpoena as a witness and the lawyer will have to testify with whom he met, who provided him information, and who paid him.  If the child who is receiving a greater portion of the estate never even met the lawyer, this would be a great fact.

The more of these words of warning that are violated, the greater the likelihood it is that the Will could be successfully challenged.  It’s up to you.  You, as the client, play a role in ensuring that your Will is enforceable after your death.

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