Will contests — and how to avoid them

Published Oct 28, 2018 at 9:00am

We’ve all heard about hotly contested celebrity estates.

The battle over legendary guitarist Jimi Hendrix’s estate was not resolved until 2015, over 45 years after his death.

The fact that musician Prince, known to be controlling and astute in business affairs, died without an estate plan immediately spawned litigation. Aretha Franklin is yet another celebrity who died without a Will, even with a net worth estimated at over $80 million at the time of her death. However, you do not need to be a celebrity or millionaire to become the subject of an estate battle.

Disputes arise not just over money but over family homes or other real property, business interests and personal property such as family heirlooms, antiques and vehicles. Estate battles are usually very costly, irrevocably destroy relationships and generally end up with all sides dissatisfied. The cost of getting affairs in order is usually far less than an average litigation. The following are tips to eliminate challenges or make such challenges very difficult to succeed:

1. Get your Will and Estate Plan Complete! An obvious but critical point. If you want your family and loved ones to be provided for and get specific items of your legacy, then stop procrastinating, put pen to paper of your intentions and see an attorney to complete your plan.

Do not be “paralyzed by perfectionism” as there will rarely be a perfect time to complete a plan. Do your best under the circumstances and let a legal professional guide you to finalize core estate documents (Will, Power of Attorney and Health Care Proxy and a trust if warranted). 

2. Utilize an Attorney. Yes, there are Internet forms out there but is that how you want to entrust a lifetime of assets, the ongoing care for your spouse, significant other and/or minor or disabled children?

Remember, “You get what you pay for!” People see doctors for an illness and mechanics for necessary repairs. Completing an estate plan is no different. A well trained attorney should be able to effectively guide and provide options of the best plan for you. Spending what usually equates to an average car repair to complete a Will can potentially avoid years of litigation and thousands spent by your family members if there is an estate dispute.

3. Communicate with family members. Open and honest communication with family regarding estate plans is too rare. Our firm always offers and encourages people to bring in children or other beneficiaries when designing and completing a plan so everyone understands what is intended and to avoid subsequent disputes.

I’ve seen estate plans change in very positive ways when a child speaks up about a specific asset the parents otherwise thought he or she had no interest. There are a variety of reasons why people keep their affairs private but clear communication can avoid years of bitterness among family members after your passing.

4. Be clear with your intentions. Do not leave things to chance or assume because you told a person they will get a personal item when you die (without specifying it in a Will) it will actually happen. An attorney should map out what will happen to your assets upon your death as well as what happens if your children or other beneficiaries die before you.

You should list “remote contingent beneficiaries” in your Will who are the people and/or entities/charities who would inherit if all your named beneficiaries die before you. It is called estate “planning” for that reason, to plan for any set of circumstances, however tragic or unlikely they may seem.

5. Include a “No Contest” clause in your Will or Trust. This term is called the “in terrorem” clause, which is Latin for “in fear.” I refer to it as the, “Don’t mess with me!” clause. Generally, this clause is designed to instill “fear” that if anyone challenges your wishes and loses, that person loses any bequest they would otherwise be entitled to under the Will or trust.

Example: son Johnny is unhappy he was “only” left 20 percent of his mother’s estate. Johnny loses a challenge to overturn the Will. Johnny now ends up with zero (0 percent) for putting everyone through his unsuccessful challenge. Such a clause thus acts as a deterrent for many such Will contests.

6. Complete your Estate Plan while you are healthy. Many people are compelled to complete a Will when they are very ill and in failing health. President John F. Kennedy expertly summarized it: “The time to repair a roof is when the sun is shining.” The most common challenge to a Will is that a person lacked mental capacity (due to dementia, Alzheimer’s or otherwise) to understand the Will and/or was unduly influenced into leaving a disproportionate amount of assets to a caretaker or other person.

These cases can, among other things, require the retention of medical experts and the review of voluminous medical records. Even with proof of physical and mental impairment, all the facts surrounding the creation and signing of the Will need to be examined, adding to the length and cost of litigation. Completing an estate plan in times of good health and clear thinking eliminates such arguments when you are gone.

7. Make sure your Will is signed and witnessed properly. While your attorney should be responsible for this requirement, be aware that if a Will is not properly signed it is subject to challenge and may be found invalid.

In New York, a Will, among other things, needs to be signed in front of two independent witnesses who must also sign it. Your attorney should also ask you questions with witnesses present before you sign so the witnesses can then sign an affidavit verifying you had mental capacity and understood what you were signing. That affidavit is important in case the witnesses die or are unavailable if a Will is later challenged.

Although the above is not an exhaustive list of safeguards, it highlights the necessity of having things done properly and leaving nothing to chance. The peace of mind an estate plan should provide must be weighed against the lasting hurt and severed family relationships once the damage has been done due to a nonexistent or sloppily put together estate plan.

James S. Rizzo is an attorney with the law firm of Hilton Estate & Elder Law, LLC, with offices in Rome, Utica, Lowville and Boonville, NY. He has more than 22 years of legal experience and concentrates in Estate Planning matters, including Wills, Revocable and Irrevocable Trusts, Powers of Attorney, Health Care Proxies, Asset Protection, Nursing Home planning and Medicaid applications. He can be reached at jsr@hiltonlawny.com or (315) 624-9600 for a free, confidential initial consultation. Also visit us on the web at: www.hiltonlawny.com.