How to Stop a Will Contest

As a recent saying goes, “If there is a Will, there may be a Will contest.”  Probate litigation continues to increase, especially when there are families who have some level of discord.  Frequently, families want to disinherit or limit the share of one of their children.  However, they also wish to insure that when they die, the other heirs do not have to endure a Will contest.

The typical scenario is that an individual has children, but wishes to disinherit one because they are estranged or because one or more events has strained the relationship.  Without question, no child has a right to an inheritance.  Thus, disinheritance is appropriate.  However, it may not stop a Will contest because, when one is completely disinherited, he or she has nothing to lose by filing litigation.

There are three ideas to employ to minimize the chance of a Will contest.  First and foremost, provide a modest bequest and put in an in terrorem, or no contest, clause.  This clause provides that one who contests the Will loses their inheritance.  Second, re-execute the Will periodically, as the law says that if a Will is deemed void, the prior Will shall take effect.  Third, do this re-execution with slightly increasing bequests.  Thus, if the current Will is voided, the contestant shall take under a prior Will which leaves him or her less.

In all, proper planning can be used to minimize the chance of a Will contest.



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