Nobody wants to see their estate plan contested upon their passing, so can you tell in advance that your plan is likely to be contested? What most people think of as a Will contest is a disgruntled heir who receives substantially less than others contending that the Will is totally invalid. Unless you have made a distribution that differs from prior Wills or the rules in testacy, you are not likely to see a contest. In other words, if you always treated your children equally in the disposition of your estate, what child would contest that Will? When an unequal distribution is desired, a contest is much more likely unless the family knows of your desires and respects your wishes. The most common scenario for Will contest is when a parent and child have a strained relationship, and the parent decides not to leave that child much or anything in the Will. That disgruntled child is going to at least consult with an attorney about a contest. There are many steps to help guard your estate plan from a contest, but that is for another article.

Actually, a more common type of Will contest is the beneficiaries of the estate contesting who will run the estate (the executor or trustee) or contending that the person running the estate is doing their job poorly or unlawfully. The major factor that leads to these contests (other than outright dishonesty of an executor) is lack of trust. If your beneficiaries do not trust each other, selecting an executor that is neutral may be highly desirable.

Some factors that don’t necessarily mean there will or will not be a contest are:

  • How much the estate is worth
  • Whether it is a blended or nuclear family
  • Whether the beneficiaries have ever fought with each other before

Discord and fights will break out over the most trivial assets, so Will contests are not reserved for the largest states. Discord can be as acute in a nuclear family as a blended family, although with a blended family, beneficiaries are “strangers” to each other, the chance of dispute is more likely. Finally, just because open warfare has never broken out in your family, it doesn’t mean it won’t occur after you pass. Especially when there is a strong-willed matriarch or patriarch, conflicts are often bottled during the matriarch’s or patriarch’s life. On their passing, long-simmering resentments arise.

To get the best advice from your estate planning attorney and to have the strongest plan, you must honestly advise the attorney of any potential conflicts in your family. Do your beneficiaries simply tolerate each other, or do they really have warmth and affection for each other? Do your children simply tolerate their step-parent, and vice versa? Seriously assessing how your family would deal with each other when you are not present, and advising your estate planning attorney of these facts, will lead to the most realistic estate plan designed to avoid conflict.

This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, specific tax, legal or accounting advice. We can only give specific advice upon consulting directly with you and reviewing your exact situation.