Understanding and Mitigating the Risk of Will Contests: Protecting Your Legacy

Creating a will is an essential part of estate planning, as it ensures that your assets are distributed according to your wishes after your passing. However, the possibility of a will contest can introduce complexities and potential disputes among beneficiaries. A will contest is a legal challenge to the validity of a will, typically initiated by parties who believe they have been unjustly deprived of their rightful inheritance. In this post, we will explore the grounds for will contests, delve into the multifaceted elements that can lead to such challenges, and discuss strategies to mitigate the risk of will contests.

  • Mental competence: For a will to be valid, the testator must have the mental capacity to understand the ramifications of their actions at the time of the will’s execution. This includes comprehension of their assets’ nature and extent and the relationships within their family. Should the testator fail to identify key relatives at the time of the will’s signing, their legal capacity to execute the will could be called into question.
  • Undue influence: This ground relates to situations where a third party has leveraged its relationship with the testator to manipulate the will’s content. An example might be a caregiver threatening to abandon an elderly charge unless they are included in the will.
  • Fraud or mistake: If evidence suggests the will was signed under false pretenses or as a result of a misunderstanding, a legal challenge may be mounted. For instance, if the testator signed the will believing it to be a different document or new pages were added post-signing, the will’s validity may be challenged.
  • Improper execution: The statutory requirements for a will’s execution must be strictly adhered to for the will to be deemed valid. The will’s legitimacy may be questioned if these requirements, such as the number of witnesses, are not met.
  • Revoked or outdated will: If a more recent will supersedes the will presented for probate, or if the will was revoked prior to the testator’s death, it could be legally contested.

If a will contest proves successful, the entire will or part thereof may be disregarded, or a previous will reinstated. Without a valid will, the estate is typically distributed according to intestacy laws, favoring the closest living relatives.

Risk Mitigation

To mitigate the risk of a will contest, thorough planning, and meticulous drafting are of paramount importance. A judiciously crafted will should aim to maintain familial harmony and refrain from unwarranted disinheriting of family members. The strategic distribution of assets outside of the will, such as through lifetime gifts or trusts, can also curtail the risk of contestation. Including an “in terrorem” clause in the will could also deter potential challenges by threatening disinheritance, but enforceability varies by state.

Wisconsin Specifics

It’s important to remember that each state has its unique legal landscape governing the creation, execution, and contestation of wills. Consequently, seeking professional legal advice when drafting or revising a will is highly recommended to ensure it’s resilient against potential contests, fulfills legal requirements, and accurately conveys the testator’s wishes.

In Wisconsin, to execute a valid will, the individual making the will (known as the testator) must be at least 18 years old and of sound mind. The will must be in writing and signed by the testator or another person under the testator’s direction and in their presence. The will also requires the signatures of at least two disinterested witnesses who must sign the will in the presence of the testator.

A will contest in Wisconsin, as in other states, generally requires that a person have standing, meaning that they must be personally and financially affected by the outcome of the will. Standing is usually limited to beneficiaries named in the will or heirs at law who would inherit under the laws of intestacy if there were no will.

A unique aspect of Wisconsin’s law is that it permits “no contest” clauses in wills. These provisions, designed to discourage disgruntled heirs from contesting the will, essentially disinherit anyone who contests the will. However, the enforceability of these clauses can be nuanced, and they may not dissuade a contest if the potential challenger stands to gain significantly from a successful challenge or believes they have a strong case.

Furthermore, Wisconsin law also provides for a procedure known as “will validation” during the testator’s lifetime, which can preemptively confirm the validity of a will and prevent future contests.

Securing Your Legacy

Navigating the intricate web of estate planning can be a challenging task, filled with potential pitfalls and legal complexities. The risks associated with improper planning can lead to familial disputes and potential legal contests, complicating what should be a straightforward inheritance process. This is why expert guidance in this area is essential. At Legacy, we offer a comprehensive suite of estate planning services to ensure that your final wishes are clearly articulated, legally robust, and less prone to challenges.

With a keen understanding of state-specific laws, including those unique to Wisconsin, we’re equipped to tailor our services to meet your unique circumstances and needs. Don’t leave your legacy to chance. Ensure that your will is not only a true reflection of your wishes but also a legally sound document that stands up against any contestation. Contact us today and take the first step towards secure and effective estate planning. If you are a Legacy client and have questions, please do not hesitate to contact your Legacy advisor. If you are not a Legacy client and are interested in learning more about our approach to personalized wealth management, please call us at 920.967.5020 or email us at connect@lptrust.com.

© 2023 M.A. Co. All rights reserved.
Any developments occurring after February 1, 2022, are not reflected in this article.

This newsletter is provided for informational purposes only.
It is not intended as legal, accounting, or financial planning advice.

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