Highly Effective Criminal Defense, Real Estate And Estate Planning
Attorney Bryan E. Cameron

How can I make my estate plan challenge-proof?

When you are putting together your estate plan, your focus is probably on providing your loved ones with a better life. You want them to be able to make use of the assets you’ve chosen to leave to them, and you want them to come together and comfort each other as a family as they mourn you. You definitely don’t want a lawsuit to tear your family apart and destroy relationships over physical possessions.

Unfortunately, that scenario is all too common. Sometimes when someone doesn’t feel like they are getting their “fair share” of an estate, they bring a lawsuit to challenge the validity of the will in the hopes of getting a bigger portion. While there’s no silver bullet that can guarantee that this won’t happen in your family, there are a few strategies that you can use while crafting your estate plan that will minimize the chances of anyone successfully challenging your will.

How people challenge wills

One of the most common strategies people use to challenge the validity of a will is to call into question the testamentary capacity of the testator (the person who created the will). This essentially means that the person presenting the lawsuit alleges that the testator wasn’t in their right mind or didn’t understand what they were doing when they created the will.

Another common challenge is that the testator was under undue influence to create their will in a particular way. This allegation often asserts that some member of the family exerted improper pressure on the testator to leave to them a greater portion of the estate than the testator otherwise would have.

How to make challenges less likely

The easiest thing you can do to decrease the likelihood that your will could be challenged is to follow the witness and signing requirements of New York’s wills law. This means signing your will in the correct manner, and in the presence of the correct number of witnesses.

The purpose of this law is to ensure that there are at least two witnesses who were able to evaluate your mental state when you signed your will. These witnesses would be able to testify that you had the proper testamentary capacity and that no one was pressuring you to create your will in a particular way.

It’s always a tragedy when a lawsuit tears a family apart when they most need each other. By following the proper procedure, you can minimize the chances of anyone being able to challenge your will successfully once you’re gone.