Preventing will squabbles with no-contest
clause
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"Some states, you can sue without triggering the no-contest law," he says. "On the other hand, you don't want to create the situation where someone who unduly influences the person inserts a no-contest provision into the will to bully the family or other potential claimants."
Legal challenges to wills are rare, and successful
challenges rarer still.
"There just aren't that many reasons to contest
a will," says Randolph. In general, you have to show that:
a) the person lacked capacity (i.e., wasn't aware of his or her
actions); b) was unduly influenced or c) the will is improper (i.e.,
forgery was involved).
Courts typically rule against line calls, choosing
to protect the rights of the deceased to distribute their estates
as they saw fit.
In fact, in three states -- Arkansas, North Dakota and Ohio -- you can appear in an "antemortem" probate proceeding and have your will deemed valid while you're still alive and kicking. If you want to further bulletproof your will against likely challenges, you can videotape yourself preparing the will and include a doctor's assessment of your mental clarity as evidence of capacity.
"The procedure is not used that often because most wills are not contested, but in situations where they fear a contest, this is the absolute solution, it's a done deal," says Beyer.
A no-contest clause comes in handy when you're willing
to give something to a disgruntled heir that is short of what his
or her full share might be in the absence of a will.
Here's Beyer's example:
Say you have a $1 million estate, your spouse predeceased
you and you have two sons -- Bob, whom you love, and Doug, whom
you loathe. If you leave three-quarters of your estate ($750,000)
to Bob and one-quarter ($250,000) to Doug, your bad seed may be
upset because he didn't get the 50-percent share ($500,000) he could
expect had you died intestate (without a will).
However, if Doug were to hire a lawyer on a contingency basis, which is par when contesting a will, it's going to cost him up to 40 percent, or $200,000, if he's successful, leaving him just $50,000 richer. Will he risk losing $250,000 to make an additional $50,000? Not likely.
The in terrorem provision is a poor substitute for
communication when it comes to healing family wounds or preventing
further blood-feuds.
"If you think you need one for a particular situation
or person, there is probably a better way to take care of the issue
rather than to rely on the no-contest clause," says Randolph.
"A common situation involves the surviving spouse and children
from a previous marriage, where there's tension about who's going
to get the money now. If you talk to the family beforehand and say
'Here's what I'm doing' and why, that could forestall things rather
than just hope that you'll scare them off with a no-contest clause."
Jay MacDonald is a contributing editor based in Austin, Texas.
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