Will Contests

In estate planning, there is always the possibility that a beneficiary may be dissatisfied with what’s been willed to them, and could challenge or “contest” the will.

Anticipating that this may occur, some testators insert a “no contest” clause when drawing up a will. This type of clause would say something to this effect:

“I have purposely made no provisions herein for any other person or persons, other than as set forth in this will, and if any person contests this will, I revoke any share or interest given such person, and said share or interest shall be disposed of as though said person predeceased me without leaving issue.”

This type of clause usually discourages will contests, but not always. A will discourages only beneficiaries named in the will, not disinherited persons who stand to lose nothing by contesting. Beneficiaries may still wish to contest if they expect to gain more than they will lose.

What are the types of situations which can invite a will contest?

The most common are where the testator disinherits a family member and names a friend, or a charity, or a spouse who they married shortly before their death. Another situation is when the testator’s children are treated unequally, and one or more is favored over another. If the testator is very old or physically or mentally impaired, a contest is more likely to be initiated.

Will contests are very infrequent, and successful ones are even more infrequent. Recently however, will contests are becoming more common. Among reasons includes the fact that a high divorce rate has increased the number of children in former families, and there may be bad feelings between the children and the surviving spouse.

In some instances, when the testator’s attorney has been named as executor of the will, this situation might increase the likelihood of a will contest. If one of the beneficiaries is dissatisfied with the provisions in the will, he may charge that this is a reason why the testator was persuaded or intimidated by the attorney. He could challenge the will and petition it not to be entered into probate court. In this case also, it bears keeping in mind that these circumstances rarely produce successful will contests.

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