I think my relative is going to contest my will, is there anything I can do to avoid a Will dispute?
Obviously, at this point I’m alive, but I’m Sarah Siedentopf, I’m an estate planning attorney in Atlanta, Georgia, and this is something that comes up a lot.
Sometimes we say, “Why would that person have any expectations?” Because they’re not in, you know, they’re not related closely enough that legally they would have any expectations even if you passed away without a will. And sometimes you are making distributions that will displease or surprise people in your family that would automatically inherit if you passed away without a will.
And so, there are a couple of different thoughts on trying to avoid a will dispute.
And the first one is, if it is a situation where it makes sense to talk to the person and let them know ahead of time. Not all situations fall into this category.
But sometimes explaining to your child why you are leaving money to X, Y, Z charity or X, Y, Z other family member as opposed to giving it all to them can be an important part of avoiding hurting their feelings and having them contest things. Because often a big component of a will contest is, “That you have hurt my feelings. I had an expectation and you didn’t give me that money, you gave it to somebody else, did you love them more?” So, that is one potential way of getting around it is just having that conversation, laying out those expectations, letting them talk through it, hash through it with you before you pass away.
Another really important thing ’cause we may be in a situation where you’re just saying, “I have a crazy cousin who’s gonna assume like there’s no reason and there’s no talking to them.” When we’re in that situation, we really want to make sure that all of your wishes are sort of fully laid out in your attorney’s notes, their case file says, “You know, so and so wanted to do this because X, Y, Z.” And then sometimes we even put that in the documents.
So, if we are disinheriting someone, sometimes we disinherit them and state the reason. You know, often if you’re dealing with a trust, you know, it’s private, but if you’re dealing with a will, you do have to consider the fact that it will be on file with probate court, so it is and that is a public record, people can go look at it. So, you’re not trying to embarrass people, but sometimes it is important enough to literally put it in the document, “Yes, I know so and so would be expected to inherit, but they’re not because they did this.”
So, once we’ve got your why documented, whether that’s only in your attorney’s notes, or in your actual document, or potentially in a letter that is, you know, you might keep with your will so that it’s evidence if needed, but not part of the official document.
So, we’ve got what you want documented, then we want to be very, very sure that the will signing is done properly. You wanna have your two witnesses and your notary. If you have a video of your signing if there’s any moment of confusion or something like that, it can actually be worse than not having had a video of the signing. But you can have a video of what’s going on if you think the question is, did they know what they were doing? And you can also have the witnesses actually do affidavits saying, “You know, such and such was situation, so and so seemed like they knew what they were doing, they were oriented to time and place and they talked about how they didn’t want to leave such and such to so and so, and these were their reasons.”
And actually have that documented in an affidavit, you’re already in a room with a notary, you’re gonna wanna sort of talk about this with your attorney ahead of time and have that something that we’re preparing. But have that set up again as part of your file so that if there’s any question, you have that extra piece of evidence because in general, no, you can never prevent people from suing either before or after your death, but you can make it harder or not even possible for them to win. And the harder it is, the less likely it is to actually go anywhere.
So, if you’ve got a situation where you want to make sure that your estate planning is done properly because you are concerned about heading off a will dispute, heading off a fight over something, please reach out, I’d love to hear from you.
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