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How To Protect Your Will Against Challenges

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Whether you already have a Will or are about to write one, people with a serious health condition need to be especially careful to be certain their Will can withstand potential challenges. This is particularly so if your Will disinherits close family members, or has any provisions that are out of the ordinary.

A Will is primarily about money. Experience shows that money tends to make people act in unexpected ways. In addition, in many states the probate system is set up to encourage challenges to a Will by insisting that the people who would have inherited your property if there were no Will be notified that a Will has been filed. The notification generally includes an easy opportunity to challenge the Will.

It is possible someone will claim that you were legally incompetent to write a Will based merely on the existence of your diagnosis or on the effects of your medications. This can happen even if you precisely follow the requirements for creating a legal Will. It can also be claimed that you were coerced or manipulated to write your Will in a certain way because your mental state made it easy for others to manipulate you -- even though you are perfectly competent.

If you already have a Will, review the circumstances under which you executed it. If they were not challenge-proof, consider re-executing the Will to make it challenge-proof.

To make a Will challenge proof, consider the following steps.

Step 1. Keep in mind that the safest way to make your Will challenge proof is to have an attorney write it and supervise the execution.

If want to save money by writing your own will, you can help make it challenge proof by hiring a lawyer to review it and to oversee the execution.  If you don't have a lawyer oversee the execution, and don't follow the state law about execution of a will exactly, you won't be here to fix the mistake. Wills which do not follow state law are not valid.

When lookingn for a lawyer, it is preferable to choose a lawyer who has experience with wills (and estate planning if you have a large enough net worth to be subject to the estate tax). Check a lawyer's background. There are many sources available to help locate a lawyer other than just asking a friend for a referral.  A friend's experience may not indicate a lawyer's real expertise. (See How To Find A Lawyer and How To Choose A Lawyer.)

You can save time and money if you prepare for a meeting ahead of time. Preparation for a meeting with a lawyer includes:

If you cannot afford a lawyer, you may be able to get a lawyer's services at low cost or for free (pro bono). 

 Step 2. Be sure the provisions of the Will are clear and legal in the state in which you live. If you expect a challenge, consider a clause to counteract it.

  • Be sure every provision in the Will is clear. If there are legal terms, find out what they mean.
  • Do not include anything which is illegal or immoral.
  • If you intend to disinherit someone (not leave anything to someone who would normally be an heir, such as a spouse or your child):
    • Check the law in your state. You may find that certain people, such as a spouse, are entitled to a minimum of a percentage of your net assets no matter what you say in your Will. 
    • Rather than just not mention a person you would be expected to leave at least a part of your assets to, such as your spouse or children, it may help prevent a challenge to your will if you state that you intend to not leave any assets to the person or to people in that category. For example, include a provision such as: I intentionally make no provision in this Will for my children now living, or any children hereafter born to or adopted by me or for any other issue of mine. 
  • Consider including in your Will a provision to the effect that if any beneficiary challenges the validity of your Will or any of its terms, whatever he or she might have received instead goes to (name another beneficiary.) This idea works best if the person who would have contested your Will has the risk of losing something substantial if the challenge fails. This type of provision can also work if the challenge might affect people the challenger cares about. For example, if your only surviving family member is your brother who loves his daughter, and you left some of your assets to his daughter, and none to him -- state that if he challenges the Will, that anything he would receive, and everything you left to her, would instead go to someone else.

Step 3. Do your own self check to be sure you are competent to make a will and not under anyone's influence.

In order to have a valid Will, you must have testamentary capacity and be able to exercise your free will.

To have testamentary capacity, you must be able to show that you understand each of the following:

  • That you are making a Will.
  • What your estate contains.
  • The size of your estate.
  • What you are leaving to whom.
  • Who would normally be your heirs, even if they are being disinherited.

You have free will if you are not under anyone else's influence.

If there could be a question about whether you have the necessary mental capacity, get a written opinion from your doctor, from any mental health therapists you see. You may also want to ask a care manager to do an assessment of your mental capacity.  To locate a care manager, ask your medical team.

Step. 4: Consider having the execution of your Will recorded by video, or at least audio.

A video or audio recording of the execution of your Will can serve as strong proof of the condition you were in when you executed your Will, and what happened. It can also work against you.If using the video on your smartphone or a camera doesn't work for you, consider asking a court reporter to attend the execution of the Will to record the exact words of everyone who participates in the ceremony.

A recording could work against you if:

  • You don't look very competent or you look very ill. Some people associate looking very ill with being incompetent.
  • You speak haltingly -- whether because of your illness or normally. The people who might use the filming to judge your competence won't know how you normally speak, and might interpret your speech pattern as a sign of incompetence.
  • You get nervous on camera.

Once recorded, the recording cannot be undone. It becomes discoverable evidence concerning the execution of your Will.

If the execution of your Will is to be video recorded

  • Make the filming without interrupting or pausing the camera.
  • Start the filming with a discussion which shows the viewer that you have necessary testamentary capacity. For example, talk a bit about the people who would normally be expected to inherit your assets such as your spouse and children and talk in general terms about your assets. The specifics aren't necessary. You only need to include enough so people can see you understand what you own.
  • State on camera that you either wrote the Will yourself (which, we repeat, we do not recommend) or that you read it over word for word. Also state that you understand all of its provisions.
  • Say that by signing the Will you are executing your Will as your own free act. You are not being coerced.
  • Name your witnesses to the camera. Also ask them to say to the camera that they agree to act as your witnesses.
  • Film your initialing each page and signing it in sight of all the witnesses.
  • Film each witness initialing each page and signing at the end.
  • Make sure it's obvious to the camera that all witnesses are present during the entire proceeding.

When you're done, give the video or disc to your attorney to hold with your Will. Alternatively, store it in your safe deposit box if you have one.

Step 5. Read over the document which is to be signed to be sure it says what you want, that you understand and agree with every word, and that it looks like a professionally written Will.

  • Each page should be consecutively numbered. Numbers on each page should be in the same part of the page.
  • None of the pages should be missing.
  • The document should be neat and clean.
  • The pages should be bound together in some fashion, such as with staples. It's important that the document does not look like it has been bound, taken apart, and then rebound because there could be questions later about whether it was tampered with and pages substituted.

Step 6. When you are sure the document is ready for execution, gather the witnesses.

  • Check the law of your state concerning the procedure to follow to execute a Will. See Summary Of State Requirements.
  • If you have a residence in more than one state, be sure that the method of executing the Will satisfies the requirements of each of those states "just in case."
  • For safety, use one more witness than required under your state law. For example, if your state requires two witnesses, have three. That way, in case there is a challenge, it is more likely that at least the required number of witnesses will be available to testify about the execution of the Will.
  • Choose the right witnesses. Ideally, each of your witnesses is someone who:
    • Is presentable on a witness stand.
    • Is not named in your Will.
    • Will not stand to benefit from your death in any way.
    • Already knows you so they can state that you appeared no different than usual when you signed your Will.
    • Is healthy and young enough to be likely to be here if you live a long life.
    • Is no more likely to move than any other normal person.

People in a law office make good witnesses.

Consider using your psychotherapist or physician or clergy person as a witness, or at least ask one of them to sign a letter of competency on the same day that you execute your Will.

As you will see, it will also be helpful to have a Notary Public present, or nearby.

Step 7. Be sure the witnesses are instructed to stay together during the entire signing ceremony. Then sign the document in front of them. They should then do the same. NOTE: It would make the administration of your Will much easier if each witness signed what is known as "a self-proving affidavit" As you will see in the form provided in the information about Step 7, in the affidavit the witnesses swear that the Will was executed according to the legally required procedure. (A Will does not have to be executed in the presence of a Notary Public. Only the affidavit has to be executed in the presence of a Notary Public.)

The witnesses as a group should be told that:

  • They must stay with you, and in eye sight of you and of each other, until the process is complete. They cannot leave, not even for a moment, once the process starts. (If someone does leave, start over from the beginning when all of you are together again.)
  • The document is your Last Will and Testament.
  • Either read it over again in front of them to be sure there are no changes from what you think it says, or tell them you just read it over to be sure there are no changes from the document you approved.
  • Ask each of the people to be your witness.
  • Initial each page in the same place (such as the lower right hand corner) except the page you'll sign in full.
  • Date the Will and then sign it. When you sign it, sign your name exactly as appears on the Will. For example, if your Will states your name is John Green sign your name John Green, not John D. Green or Jonathan Green.
  • Do not write anything after your signature. Any handwritten changes should be made prior to signing the Will and should be initialled by you.
  • After your Will is signed, ask your witnesses to also initial each page of your Will in every area in which you initialed, and then to sign as witnesses to your Will.
  • Ask each person to add their home address and phone number.

It would also help if each person executed a self-proving affidavit (a document sworn to in front of a notary public). When a Will is submitted to probate, courts generally require the witnesses to appear or to submit an affidavit concerning the execution of the Will. In order to save time later, and make life more convenient for your Personal Representative/Executor, a self-proving certificate should be executed at the same time as the Will. The affidavit can then be submitted later with the Will. If there is a challenge, the witnesses can always be called to testify -- if they can be found. If they can't be found, there is at least the existence of the affidavit.

A self-proving affidavit (a sample of which is below) should include at least the following statements:

  • You asked each of the people to be witnesses to your Will.
  • They witnessed you sign your Will in each other's presence.
  • They signed your Will in each other's presence.
  • You were, in their opinion, of sound mind, memory, and understanding.
  • You understood what your assets were, and who would receive your assets if you didn't have a Will.
  • You did not experience any defect of sight, hearing, or speech or from any other mental or physical impairment that could affect your ability to make a Will.
  • You were not under any undue influence.

If you  are getting forgetful, also consider having at least one of your witnesses (and preferably all of them) write letters describing your conversations in detail and how you seemed to them. Store the originals with your Will (see Storing Your Will)

Do not sign more than one copy of your Will!

Step 8. When the execution is complete, make several photocopies of the Will. Be sure not to unbind the Will during the copying process. An alternative is to make more than one copy of the Will before it's executed. If you photocpied the Will before execution: after execution, on each copy,  print the information that's been added at the execution such as initials on each page, the date, your signature, and the names and addresses of each witness.

NOTE: If you write more than one will over time which says the same thing (serial wills), it makes it even more difficult to challenge your Will.

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