Updated: December 20, 2022
If you have considered everything carefully, can you be sure everything is done according to your wishes after you die? Not always, but there are ways to improve your chances. One of the common reasons this happens is if your will is successfully contested.
Since there has to be a valid legal question about your will for a contest to be considered, the primary method to prevent challenges is to do all that is necessary to assure your will is valid and prevent problems with the probate process.
Although contesting a will requires that a beneficiary file a formal legal challenge against the validity of your will and is a difficult, time-consuming, and expensive process that is rarely successful, you may need to take further steps to prevent someone from successfully contesting it.
There is a way to discourage indiscriminate challenges to your will called a No-contest Clause.
The Probate Code states that only “interested persons,” usually family, can legally challenge your will, including any amendments/codicils. In order to be an “interested party” and be able to challenge a will, one needs to have proof that they fall into one of three categories.
Most people challenging your will must file during the probate process. Minors wanting to contest your will must wait until they reach the age of majority (typically age 18), however your will can be challenged on their behalf by an executor or court representative.
There are four common reasons your will might be contested.
For any heirs or beneficiaries to successfully challenge your will, they need to prove there is a legal reason to invalidate it. Being hurt and angry will not get them a hearing if your will is entirely valid.
There are many technical errors that can be exploited to justify a challenge to your will. If you go to the Making Sure Your Will is Valid section you can review all of the details necessary to make sure you got it right. A mistake or omission of any of those could invalidate parts or all of your will and leave it open to being challenged.
27 states allow holographic wills, which are handwritten and signed by you, but don’t need to be witnessed.
As long as your will is valid in the state it was created, executing your will in a different state does not invalidate it.
Although included in the “Making Sure Your Will is Valid” section, you may want to give special attention to these reasons for contesting your will.
Contention that you lack Testamentary Capacity is a common reason used by heirs and beneficiaries to justify a challenge.
Concern of the heirs and beneficiaries that:
Concerns that you were under:
Other reasons beneficiaries or others may want to contest your will may include:
If your will is successfully challenged, it can be completely or partially invalidated, but not changed.
There are specific measures you can take that do not affect validity, but can still reduce the risk of a challenge.
Add a Non-contest Clause
Also known as an in terrorem clause, it is a provision in your will stating that if anyone files a lawsuit to challenge what they have inherited in your will, they will receive nothing from your estate if they lose the challenge.
Other alternatives include: