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Recommendations to Avoid a Will Contest

Have you ever been told that "anyone can sue for any reason"? Well, in will contests this is particularly true. While it is true that you have no obligation to leave anyone anything, your heirs tend to see things differently. Someone who is left out of a will by a loved one often claims there is no basis for the exclusion or that their loved one was unduly influenced by someone else into taking this extraordinary action.

First and foremost, it is your responsibility to ensure that your wishes are honored. Once you are dead, it is sometimes hard for the executor to defend against this, especially if the executor is not privy to the reasons for the disinheritance.

Courts when confronted with these types of cases look to the testator's words and actions when they were alive. Judges are very hesitant to strike down a will and the court tries very hard to follow the wishes of the decedent when these cases arise.

If there is a falling out between the decedent and the claimant, it is important that this be documented. Most importantly, tell the attorney drafting your will the reason - giving specific instances so that the attorney can make a record prior to the will execution and retain a memo with the file. Your attorney will likely be called as a witness in any will contest and in some ways is the most reliable witness. The lawyer is neutral and only looking out for your best interests.

Tell a trusted adviser or family members what occurred. Do not exaggerate the circumstances. Just keep to the facts and keep it simple. In that way, these individuals can testify at court as to what transpired as you relayed it to them.

If you have a legal matter against the person you want to leave out of your will, keep the legal proceeding materials with your important documents. This will give insight into why you did what you did. Some people are hesitant to actually file legal claims against their loved ones because despite their actions they do not want to get them in trouble, but they are still angry about being taken advantage of, whether it is an abuse of a power of attorney, a forged check, stolen cash or items from their home. Keeping these items are essential.

Sometimes, the aggrieved person has written a letter, sent a card or sent an email that upset you. Keeping these types of items is essential. It will tell the Court about your relationship at a given point in time.

Finally, keeping a diary or writing a letter to that person (and keeping a copy) explaining why they are being disinherited is sometimes the best evidence, because it is you speaking in your own words - not those of someone else. These items will all help to curb protracted litigation, as the claimant (if he or she did not know the reason before) will now have the explanation with backup documentary evidence.

Disclaimer: The materials on this website are intended for general informational purposes only. These materials do not, and are not intended to, constitute legal advice. Visitors to this website should consult with competent legal counsel. This webpage is not intended to, and does not create, an attorney client relationship with Weiss, Tom & Trapanese, LLC or any of the firm's lawyers. This website is not intended as an offer to represent you.

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