We’ve all heard stories about will contests and how final wishes are not carried out as planned, not to mention family members never speaking again. It’s a scene that makes us sad and which we certainly want to avoid in our own family.
So to begin with, what is a will or trust contest? It is a type of lawsuit that is filed to object to the validity of a will or trust. If the will or trust is successfully contested, then the court “throws it out” and the family is back to a position as if there were no such document.
Who can contest a will or trust? A person must have “standing” to file this lawsuit, which means that person must be personally affected by the results of the case. So such a person may be (1) a family member who would inherit or inherit more under the law if the person who wrote the will or trust had not done so; or (2) a beneficiary, who could be a family member, friend or charity named or given more in a prior will or trust. So not everyone will have standing to file such a contest, even if they suspect a will or trust is invalid.
Interestingly, Ohio is one of a few states which allows residents to establish the validity of their will before they die. This is a process through probate court which allows someone to confirm their estate planning decisions in their will while they are capable of defending them, which will then bar challenges to the plan after that person dies. There is a time limit for an interested party to file a pleading opposing the probate of a will, and such a filing entitles this person then to notice of any further probate court filings and hearings and entitles this person to respond to the filings or be heard at the hearings.
It is important to know what the grounds are for challenging a will or trust.
- The will or trust was not signed as required by state law. In Ohio the signing of a will must be witnessed by two “disinterested” persons, that is, not family members or beneficiaries.
- The person signing the will or trust must have the necessary capacity, which means the person must understand what they own, who their family members are and the legal effect of signing a will.
- The person signing the will or trust must not have been unduly influenced into signing it. Undue influence may be exerted by someone on a person who is perhaps weak physically or mentally. This undue influence must be significant and so extreme so as to cause the person making the will or trust to give in and change their estate plan to favor either that person or disfavor another.
- The will or trust must not have been procured by fraud. In other words, the person signing the will or trust must know that the document they are signing is in fact their will or trust, and not believe it is some other type of document or one with different provisions from what are actually there.
So what lessons are to be learned here? Consider the following:
- Do not “do it yourself.” If you are the least concerned about a possible will contest after your death, make sure you consult with an experienced estate planning attorney, who can help you put together a plan that will discourage lawsuits.
- Let your family know about your estate plan. You don’t need to disclose all the details of your plan if you don’t want to, but at least let your family know that you have created an estate plan.
- Consider using trusts for problem beneficiaries. Rather than completely disinheriting a certain person, think about requiring that person’s share be held in trust so that a third party trustee controls when and how that beneficiary gets distributions.
- Keep your estate plan up to date. Estate planning is a lifelong process, not a one-time transaction. The one certainty we have is that things change – our family members or beneficiaries, our lives, their lives and our assets. It is critical that you take the time to review and revise your plan as those situations change, so that your plan truly encompasses your current goals. This will also discourage a challenge based on what your family knows or thinks you want, and what your plan actually states.
Litigation regarding wills and trusts is increasing. Not only is it important, even critical, that you plan carefully to insure that your wishes will be carried out, but also to give you and your family peace of mind.
Marie Mirro Edmonds