How to reduce the probability of a will contest, P.1

Will contests, as many of our readers know, are lawsuits brought in probate court to challenge the validity of a Last Will and Testament. Will contests like the current one over the estate of the famous painter Thomas Kinkade are not completely unavoidable. With good planning and a little foresight, the probability that one's estate will be plagued with a will contest can be reduced, even if not eliminated.

Will contests typically arise when an heir or family member feels that a will doesn't represent a just or equitable distribution of money or possessions. There are a number of possible bases for challenging the validity of a will.

One obvious way to avoid the possibility of a will contest is to see to it that the will is properly executed. Ensuring the requirements for proper execution of a will are met is one of the most important tasks of an estate planning attorney.

Establishing mental capacity for making the will, one of the requirements of execution, can be proven by a number of different methods. One is by sending the "testator" to a psychological evaluation. Another is videotaping the signing of the will. The latter will help the court get a better sense of whether the will was freely signed.

One approach is to include a "no contest" clause in the will, which prevents a beneficiary who contests the will from inheriting if they lose the lawsuit. While a no-contest clause may deter an unhappy family member from taking the risk of losing their inheritance, it can be considered void in at least one situation.

In our next post, we'll continue looking at this topic.


Forbes, "Did Artist Thomas Kinkade Change His Will While Drunk?," Danielle and Andy Mayoras, July 9, 2012

Forbes, "How to Prevent a Will Contest," Bernard A. Krooks, May 10, 2012

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