They say money changes people. Instances of family strains resulting from will contests have become common place. Interestingly, a shared notion surrounding these sorts of family quarrels echo sentiments sounding of, “never in our family”. Again, money changes people; the mere prospect of money can sometimes bring out the worst in individuals. The irony in this is that at the end of litigation, the estate’s assets are generally a fraction of what they were before the process began. Litigating the validity of a will is costly; requiring heavy discovery, which is likely to result in numerous and costly fees – in addition to the resulting breakdown of the familial relationship. As such, even when it is believed that no amount of money could create friction between relatives, it would be wise to implement certain preventative measures to ensure family unity and peace after your death.
1. Insert a “No-Contest” clause or Nominal Bequest.
Including a nominal bequest can help to avoid a dispute, since the inclusion of such bequest removes the possibility of speculation that the omission of a beneficiary was not intentional. Under Florida Stat. 732.517, no contest clauses are unenforceable in Florida. However, a nominal bequest helps clarify the testator’s intent.
Even so, if a “no contest” clause is enforceable in a jurisdiction, including the clause even when a will contest seems highly unlikely, may prove beneficial. A “no-contest” clause generally provides that a bequest will fail if the beneficiary initiates or participates in a will contest. In other words, the beneficiary must either accept the will as it is, or risk losing any benefits received under it. The clause can be an effective deterrent to a will contest, but only if the potential will contestant has something to lose. For instance, a beneficiary given a more substantial inheritance may be more hesitant to bring the contest for fear of losing the gift; while a beneficiary who receives only a nominal bequest, has very little to lose by bringing a will contest.
Using a “no-contest” clause, while including a nominal bequest in the same testament could prove effective in deterring family disputes. This is especially true in situations where an older will happens to be probated in a jurisdiction rendering “no-contest” clauses unenforceable; since often, both family situations and state statutes change, rendering older wills subject to new circumstances.
2. Verbalize Your Wishes Verbally, to Relatives and Expected Beneficiaries Now.
Creating testamentary documents can understandably feel like a private endeavor, but keeping testamentary wishes a secret from relatives might lead to unintended confusion and hurt feelings after your death.
People who are blindsided might suspect they were inadvertently omitted, or that you were unduly influenced by someone else, such as a caregiver or spouse. Announcing your wishes to loved ones while you are alive gives you the opportunity to explain your actions. Verbalizing wishes makes it clear that your decisions are yours alone; and makes them more difficult to contest successfully. It also gives people more time to come to terms with the circumstances and can add context, which might help defuse any resentment.
3. Have a Doctor Verification of Your Mental Health.
For a will to be valid, the individual executing it must have sufficient mental competence to make his or her own decisions. If disgruntled heirs can raise doubts as to whether you had capacity, they could persuade a court to disregard your wishes. To eliminate this possibility, older clients could include a doctor’s note confirming their mental capacity with the will. Even if you do not show signs of cognitive decline, you should err on the side of caution.
4. Self-Proving Affidavit.
A self-proving affidavit is a sworn statement attached to a will, signed by the testator and his or her witnesses, that attests to the validity of the will. Although, it is not necessary to include a self-proving affidavit - since a properly written, signed, and witnessed will is legal without it- including one may help the probate process proceed easier, and uncontested.
Typically, witnesses sign the self-proving affidavit at the same time they sign the will itself, immediately after watching the will-maker sign the affidavit.
5. Avoid Undue Influence Possibilities.
One of the foremost attacks to a will may be invalidation due to undue influence or coercion; thus, it is important to protect a will from such claims. One suggestion might be to consult with your attorney without family members or other intended beneficiaries. Another recommendation might be to prepare a letter discussing your desires and what you wish to accomplish in the will. For example, if one child or beneficiary is particularly aggressive, you might prepare a letter stating that it is your desire to benefit each of your children/beneficiaries equally, and that if the will to be probated appears to conflict with such intent, it should be presumed to be the product of undue influence, unless prepared by your usual attorney, and accompanied by a clear statement indicating otherwise.
Proactive implementation of some of the above practices could help avoid unnecessary and unfounded family quarrels; preserving family ties and estate assets.