Colin Wong
Some wills are more likely to be questioned than others. Here are the situations that tend to invite a challenge, and what people do about them.
Most wills are never challenged. Some situations do make a challenge more likely, and knowing which ones can help you plan around them.
A challenge usually rests on one of a few grounds. Someone may question whether the will was made under undue influence, or whether the will-maker understood what they were doing at the time.
In other cases a family member says they were not properly provided for. What counts as a ground, and who is allowed to bring a claim at all, is set by each state.
Situations that tend to invite a challenge
Leaving children different amounts.
Leaving out a close relative, such as one of your children.
Moving away from plans you had already told people about.
Beneficiaries who do not get along with each other.
Estrangement or long running conflict in the family.
An unexpected beneficiary, especially one receiving a large gift.
A relatively new partner named as the main beneficiary.
Wording that could be read more than one way.
Tight conditions attached to a gift.
A sudden, large change to the will.
A big change made while the will-maker was unwell, with nothing on file about their capacity at the time.
That last one is worth spelling out. A health condition does not stop someone from making a will. What tends to cause trouble later is the absence of any record about capacity on the day it was signed.
One more thing to know. In most states you cannot leave a spouse out of your will entirely, and a few states limit leaving out a child. Check what your state allows before you plan around it.
What people do about it
An attorney can word a will so it says what you mean, and can tell you what your state allows if you want to leave someone out. That is worth doing where you can see a disagreement coming.
Keep a record of capacity
Some people ask their doctor for a letter about capacity, dated as close as possible to the day the will is signed. Letters like that usually cover:
The doctor’s qualifications.
How long they have been your doctor.
Their opinion that you understood what making a will means.
Their opinion that you had the capacity to make a will on the day you signed it.
Keep the letter with your original will, and tell your executor that it exists.
Make sure your executor can find the will
Tell your executor where the original is kept. It saves them time, and it lowers the risk of the will being lost or thrown out by somebody who does not like what is in it.
Deal with any earlier wills
A new will normally includes wording that revokes earlier ones. Each state sets its own rules for revoking a will, and there are ways to get it wrong, so this is one to check for your state rather than improvise. Some people keep an earlier will and some destroy it, and an attorney licensed in your state can talk through which makes sense for you.
Taking the next step
You can write or update your will online with EveryWill, and it costs you nothing. Charities cover the cost, and you can choose to leave a gift to one if it feels right.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Laws vary by state. For advice specific to your situation, please consult a licensed attorney in your state.