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The Elusive “Iron-Clad” Will

The Elusive “Iron-Clad” Will by Tom Sciacca

{Read in 8 minutes} Question: Is there any such thing as an “iron-clad” Will?

Simple answer: Nope (sorry ‘bout it).

A lot of people think that putting a certain amount of time, work, or even money into drafting estate planning documents can prevent a troublesome family member from challenging a Will. That’s not how things work. In New York (like in most states), we have a self-policing system of determining validity of Wills. That means that when someone dies, the Court puts his or her next-of-kin on notice that someone is offering the Will for probate. Essentially, telling them that if they have an objection to the Will, they should show up in Court and let their voice be heard as to why the Court should not probate it. Best-case scenario, a troublesome family member will simply not appear in Court; worst-case scenario, they see it as an invitation to challenge the Will’s validity.

For example, let’s say that a client is not close with her family. She has never married, and she has no children. Her parents are now deceased, and her next closest relative is her brother and his children, to whom she has not spoken in 30 years. The client may be incredibly emphatic when coming in and talking about how she wants to disinherit her brother and his children. However, regardless of how clear she is and regardless of what she says in her Will to emphasize her intent, when she dies, her Executor will offer the Will for probate, and the brother or his children will receive a notice saying that they have the right to challenge the Will if they choose to do so.

The brother can simply come in and cause a lot of problems, and hence a lot of legal fees, without incurring too much out-of-pocket. He can come into Court and begin challenging the woman’s capacity, whether or not her signature is a forgery, and whether or not any third parties unduly influenced her into changing her Will. A lot of people find this really incredulous. “How come I can’t leave my money to whomever I would like?” is a question that I get quite often from clients sitting across my desk. The answer is that you can, so long as you have testamentary capacity and you’re doing so of your free will.

Therefore, while there is no such thing as an iron-clad Will given the rights of some parties to challenge the document, there are some steps that a client planning to disinherit a family member may wish to take during their lifetime in order to help plan for that challenge.

Here are three tips:

-Be realistic about whether or not you are anticipating a challenge. A good lawyer should sit with you, help you identify your next-of-kin, and have a frank conversation about whether or not they will come out of the woodwork when you die to challenge the Will. If the answer is yes, keep in mind that the lawyer who’s writing your will is going to be a witness at this Will challenge, and this lawyer can be a very powerful witness to upholding your Will (thus getting your wishes fulfilled). If you take the time to tell your lawyer specifically why you are disinheriting your wayward family member, he or she can provide useful testimony that will let the court uphold your Will.

If you are disinheriting your family in favor of someone else, make sure that you come to meet with your lawyer alone. For example, if you have two adult children (a son and a daughter) and you plan to disinherit your son, don’t have your daughter accompany you to the attorney’s office and sit in on the meeting. Showing up to your lawyer’s office with someone who’s going to be the beneficiary or even the Executor of your will may create an appearance of undue influence that could be very dangerous in litigation down the road. Simply put, it’s better for you to show up by yourself, pay the fee yourself, review the documents yourself, communicate with the lawyer yourself, and sign the documents outside of the presence of any beneficiary or Executor. Should you want to share the contents of your estate planning documents, you can do so after you’ve signed them.

If you are planning to have a Will contest, talk to your Executor and primary beneficiary/beneficiaries about whether or not they will have access to funds to finance the litigation, which could take months or even years. If all of your assets are going to be tied up in the probate process for the duration, you may want to make sure that they have some access to cash. For example, if you were leaving everything to a good friend to the exclusion of your family members, you may want him or her to have access to funds to pay for things like rent, clothing, and health care costs, because beneficiaries have no right to receive an inheritance until the Court admits the Will to probate.

By naming this beneficiary as a co-owner of a joint bank account or a beneficiary on a retirement or life insurance policy, you can help them out tremendously. You would be enabling the beneficiary to get cash immediately with nothing more than the death certificate—without needing to wait for probate to complete. Granting them access to these funds can help them financially survive during Will contests, and won’t put them in a disadvantageous settlement position of needing to concede to the objecting party simply because your beneficiary does not have the funds to survive otherwise.

It is important for you to be realistic about whether or not you are anticipating a challenge. And if so, choosing the right lawyer to discuss that with can help ensure that your wishes are fully carried out.