Will or Trust Contests and How to Avoid Them

Proceedings in the Superior Court to contest a will or trust are relatively uncommon. This is very good because these proceedings can be hotly and emotionally contested. The damage done can alienate family members for decades. In some cases, the damage can never be repaired.

Sometimes Will or Trust contests arise when the Will or Trust document is claimed to be defective in some way. The Court must determine if the document is legally sufficient and, if so, what it’s terms are.   Many times, however, the Will or Trust does comply with legal requirements but it is claimed that the document does not accurately reflect the decedent’s wishes due to the decedent’s lack of capacity or due to undue influence exerted over the decedent by another person. These cases are often more difficult. A few of the circumstances that might lead to a contest of a decedent’s estate plan are:

  1. Where heirs who normally would inherit have been omitted.
  2. Where heirs of the same relationship to the decedent are treated differently.
  3. Where an estate plan of long standing is drastically changed very late in life.
  4. Where the decedent has been isolated from family members.
  5. Where one family member has been given substantially more financial help during the decedent’s lifetime than others.
  6. Where children from a previous relationship exist.
  7. Where the documents have been incompletely executed.
  8. Where the documents were prepared by a family member for the decedent or by the decedent, personally.

These circumstances have one thing in common.   Even though they may have been legitimately done, they create an atmosphere where, rightly or wrongly, someone might feel as though he or she was treated unfairly.

So what can be done to avoid contested proceedings over a decedent’s estate planning documents?   A great deal of good can be done by careful drafting of the documents. If an unusual plan of distribution is appropriate, it may be a good idea to state why. In my experience, people often equate a lesser share of an estate with a lack of regard for them. This can be devastating emotionally and it is often wrong. A brief statement of intention can be very helpful.

Where a person is ill or elderly, it is often a good idea to visit a physician to be evaluated for competency before signing new estate planning documents. In a proper case, videotaping the signing conference can be helpful.

Although not always appropriate, pre-death communication with family members about the terms of an estate plan – perhaps at a family conference – might also go a long way to avoid hardship later.

Your estate planning attorney needs to be made aware of your family’s unique dynamics so that care can be taken during the drafting process to minimize the risk of a contested proceeding.

The lawyers at Platt and Westby, P.C. have been practicing in the area of Probate, Guardianship and Estate Planning and Administration for over 40 years. Contact any of our Phoenix Probate lawyers at 602-277-4441 or use the e-mail contact utility on our website at www.plattwestby.com to schedule a no-fee initial conference concerning any matter involving Probate, Guardianship or Estate Planning. We will answer your questions and, where appropriate, suggest potential solutions.

Platt and Westby, P.C. has offices in Phoenix, Arrowhead, Avondale, Scottsdale and Gilbert, Arizona.