No one likes to imagine their family ending up in court after they die. And yet it happens all the time.
Grief, money, family history, and high emotions are an explosive combination at the best of times, even amongst families that weren't already pitching for an argument.
As an experienced estate lawyer, I've seen the most functional, harmonious families turn to the law to sort out a disagreement that more often than not has been caused by one of the following triggers.
Lack of capacity or undue influence
One of the most common reasons a will is contested is that the person who made it didn't have the mental capacity to understand what they were doing. This is especially relevant if the will was created late in life, after a diagnosis of dementia or a period of declining health.
If someone appears to have been pressured, coerced, or manipulated into making a will by someone who stood to benefit it may be found the will was made under undue influence. In both cases, the will could be declared invalid.
An invalid or poorly drafted will
Not all wills are created equal. For a will to be valid, it must meet specific legal requirements, including being signed, dated, and witnessed correctly. If even one of those elements is missing or incorrect, the document may not hold up in court.
The most common wills that end up in court are DIY wills because they are often ambiguous, inconsistent, don't meet legal requirements, or reference people or property that no longer exists. Read more about the pitfalls of DIY wills HERE.
Failure of family provision
Once upon a time, lawyers used to hand out the advice that will makers could leave $1 (or $100 or some other arbitrary amount) to a disappointing family member and because they'd received something in the will the beneficiary couldn't contest under the grounds of inadequate family provision.
If you have a will that does that, you may as well roll out the posthumous boxing ring now.
Spouses, children, sometimes stepchildren or other dependents can apply to the court if they believe they haven't been adequately provided for in a will (I don't make the rules, I just help you follow them). This doesn't mean particular people have an automatic right to a bigger share of your estate, but if someone believes you had a legal requirement to provide for them and you don't, the rest of your family may be left fighting on your behalf. Doesn't matter if they've disappointed you or you've been estranged for 20 years.
The $1 beneficiary is not longer a relevant way to avoid an estate dispute.
Disputes between executors and beneficiaries
Executors are tasked with carrying out the instructions in a will - but sometimes the beneficiaries don't agree with how they're going about it. Maybe they're taking too long, refusing to communicate, or making decisions that seem unfair or self-interested.
These conflicts can get really ugly really fast. It is important to really think about how you've chosen to manage your estate and the relationship they have with the beneficiaries of your estate.
Read more about the Executor Vs Beneficiary Battle HERE.
Complex family dynamics
I'm a big believer that there's no such thing as a "dysfunctional" family. There's just families - we're all pretty dysfunctional in our own special ways. That being said modern families with their ex-spouses, new partners, stepchildren, half-siblings, provide a lot to navigate when it comes to estate law. These relationships often carry decades of emotional baggage, which can surface during the probate process. In blended families clarity and good legal advice is everything.
Is good planning enough?
Having a will is just one step in helping to avoid an estate dispute. Good estate planning goes a long way to understanding all the moving parts that may rear their head and anything that may trigger an estate dispute in the future. But is a will and a plan enough?
The short answer is no. Every single estate has the potential to end up in court (not having a will doesn't preclude you from that fact).
Regularly reviewing your estate plan, changing your will as your circumstances change, documenting your intentions clearly and having honest conversations with your family about what you want life to look like after you die is everything.
If you or someone you know is navigating an estate dispute or you think you may have cause to contest a will in the future please reach out for advice on how to make your way through the process so everyone comes out a winner (not just the lawyers).