How can you avoid having a will contested?

[Lot249]

What is the name of your state (only U.S. law)?


New Jersey
I was recently evolved in a will that was contested by the son of the deceased. Sadly, his mother was adamant in her decision to leave nothing to her son upon her death. The reasons for her decision were based on his general lack of attention and concern for her wellbeing after the death of her husband (10 years earlier), his biological father. She was diagnosed with cancer five years prior to her death. During this time he rarely, if ever, made any effort to help with some of her basic needs. No help was offered to get her to her medical appointments or help with personal needs (food shopping, minor house maintenance, etc.). His mother did not drive.
Her daughter (registered nurse) on the other hand was the only one supporting her mother during this difficult time. She was also very supportive of her father before his death. Throughout their later years, their daughter was the person they routinely relied upon for assistance. Both children live within 5 miles of their parents’ home.
When the will was being drawn-up, the attorney acknowledged her client’s adamant desire to “disinherit” her son from any part of her estate and suggested she leave her son “something”( in this case $5000) as a way to avoid having the will contested by her son.
Well, the will was contested. In addition to the $5000 dictated by the will, he received an additional $17000.00.
The will was contested because the decision to disinherit him was a result of his sister’s greed and her overwhelming influence over their mother.
PS: Three notarized statements were provided the court as evidence of the deceased state of mind in the last months of her life and her feelings of disappoint in her son’s relationship with her over many years. The three statements were provided by the deceased sisters.
I’m sorry for this long intro to my simple question: “How can a will be made “iron clade” so the wishes of the deceased can be fully realized? Is there specific language to be used? Must the reasons for disinheritance be clearly and explicitly stated?
It’s too late for the above situation but perhaps the answers to my question could help someone in the future.

Thank you.

 

[anteater]

There isn't a way to make a will "iron clad" since a disgruntled party can always raise a contest with the argument that some interested party in a position of trust exercised undue influence upon the testator in the making of the will. While undue influence is usually difficult to prove in a positive manner, it is also difficult to disprove. It is a bit much to get into a discussion of the burden of proof for undue influence and how courts have treated it in various states. But, the challenger generally has the initial burden to show that the conditions leading to undue influence - a confidential and trusting relationship with the decedent. However, if those can be shown to exist, there is a subtle shift in the burden of proof to the proponent of the will to show that there was no undue influence. I did a real quick search and came up with this article relating to New Jersey (that I have only skimmed):

http://www.americanbar.org/content/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/underinfluence.html

We often state here that children have no absolute right to inherit from parents. And, except for Louisiana under limited circumstances, that is true. However, I think that is is also true that the courts in many states have a very subtle bias in favor of disinherited children. I do not mean a bias that is blatant or prejudicial. But one that, perhaps, expresses itself in a certain leniency in interpreting the evidence presented by a child challenger.

Anyway... It isn't possible to comment on the case you mention without seeing all the evidence. But, to try to avoid challenges by a disinherited child, I would suggest:

1) Usually an explicit statement acknowledging the child and that there are reasons for excluding the child or for an unequal distribution is sufficient. But, as long as the testator does not have a problem with the "family dirty laundry" being in a document available to the public, then an explanation of the reasons definitely provides "more iron."

2) Any interested party that is in a position of trust or upon whom the testator is dependent should stay as far away from the making of the will as possible. Including, as much as possible, even discussions of the will with the testator.

 

[curb1]

1) I have been very disappointed with the judges in the four estate cases I have been associated. I was a disinterested party observing the court proceedings. In all cases the judge did not strictly take the wishes of the deceased to make his/her decisions. There were other influences that seemed to enter into the rulings that were very hard to understand. As mentioned above, the people who were non-existent before death came out much better than the deceased desired. In one case the judge ruled the executor be removed to create more harmony in the family. He appointed an independent attorney to handle the case. Naturally he hired other attorneys. The result was that the estate was totally gobbled up by legal fees. It did nothing to create the harmony that the judge used for the reason. The judge was very soft and hesitant to follow the explicit declarations of the will.

2) "Any interested party that is in a position of trust or upon whom the testator is dependent should stay as far away from the making of the will as possible. Including, as much as possible, even discussions of the will with the testator."

I am sure you realize the difficulty of that statement. Often that is exactly the person someone will consult for advice before having a will drawn, especially an elderly person.

 

[anteater]

2) "Any interested party that is in a position of trust or upon whom the testator is dependent should stay as far away from the making of the will as possible. Including, as much as possible, even discussions of the will with the testator."

I am sure you realize the difficulty of that statement. Often that is exactly the person someone will consult for advice before having a will drawn, especially an elderly person.

I realize it, curb. But, if there is a foreseeable possibility of a contest, that trusted, influential, and/or caregiving person has to do as much as possible to minimize the perception that he/she is influencing the testator's wishes.

ADDED:
I've started the Trustuser Countdown Clock running! While a trust may avoid the type of "judicial meddling" that you mention, trusts are still subject to the same kind of challenges as wills.

 

[tsalagi7]

curb1,

I am appalled at the billing of attorney fees to trusts. And the judge allows it to go on.. $1 million in fees to date and there is no end in sight to remove trustee. It appears the judge is corrupt in our situation..read "Funding sub trust." But we don't really know. We do know the judge appears lazy or not willing to uphold the law. This has caused ruination of lives. Can judge's be held responsible for the draining of trusts to the attorneys? And can attorneys also be held liable for damage to the trust and beneficiaries? A Dependent Adult's needs are being neglected here. All assets of the litigants are down to zero. What can be done if the judge won't do anything? Is there a way to get a judicial review while we're still in court? How difficult is it to remove a judge from a case for not acting in the best interests of the beneficiaries? The trust was for the rightful beneficiaries..The attorneys are not names beneficiaries although the judge seems to think so... HELP!