Estate planning is a personal decision and every client has the right to choose how their own assets will be devised. Aside from certain legal protections for a surviving spouse and minor children, there are very few limitations. However, for clients who have decided to disinherit family members, distribute unequal amounts to children, devise substantial assets to a new spouse, or provide for distributions that fall outside of the norm, there is an increased risk of litigation. Further, even an unsuccessful challenge can cause significant delay and deplete the estate and trust assets.
There are numerous grounds for a disappointed heir to challenge a client’s testamentary documents. For example, a client’s Will and Trust can be invalidated for lack of testamentary capacity, undue influence, mistake, fraud, duress, and improper execution. As part of the estate planning process, clients should discuss the risk of litigation with their attorney, especially in high risk situations.
If estate litigation is likely, there are several precautionary measures that clients and their attorney can take to reduce the chances of a successful challenge:
- The estate planning attorney should have clear, detailed documentation confirming the client’s intentions. The estate litigation will often occur years after the documents have been signed, and witnesses may be unavailable.
- If there is a dispute, there will often be litigation to determine whether the decedent had testamentary capacity. Although it may be inconvenient and awkward, clients may consider a capacity evaluation that is close in time to the execution of the estate planning documents.
- A client should select an attorney with the significant knowledge and experience in estate planning and probate litigation. An attorney with a thorough understanding of the law in this area can make recommendations that will reduce the likelihood of a successful challenge.
