Reed: Protecting against a will contest

Sandra W. Reed
Special to the Reporter

Tom Williamson and his wife, Kay, recognize that one of their five children harbors feelings of jealousy, believing that the parents favor the other children. To the contrary, Mr. and Mrs. Williamson have given Ray money over the years, which he has squandered. They wish to balance the scales through their will but worry that Ray might retaliate by contesting their wills. What can they do to protect against such a challenge?

Sandra Reed

Primary challenges to wills

There are two primary challenges to wills: (1) competence of the testator; and (2) undue influence over the testator to favor a particular beneficiary. The Williamses can protect against the competency challenge by timing the drafting of their wills while they clearly retain the mental capacity to do so. They can protect against the undue influence claim by maintaining distance from all beneficiaries during the process of creating their wills. The Williamses should not discuss their wishes with the beneficiaries, nor should beneficiaries be present when the wills are prepared and executed.

Protecting against challenge by omitted beneficiary

A less common challenge to wills comes from an individual, usually a child of the testator, who anticipates being a beneficiary, but is not included in the will. The disappointed child often claims that this was a case of omission by mistake.

One method to lessen the chance of this claim is to make a statement in the will that the testator has intentionally omitted this person.

Another way to handle the problem is to acknowledge the individual with a minimal gift, thus precluding the claim that the testator “forgot” to name the potential beneficiary.  What is “minimal” depends upon the size of the estate.

No contest or in terrorem clauses

The testator should consider including in the will a no contest clause, often called an Interrorem Clause, providing that any beneficiary who brings a court action, including a will contest, forfeits any gift that would otherwise go to that person in accordance with the will. However, these are not failsafe provisions in that they have been interpreted narrowly in Texas. For an in-depth analysis, read “The Fine Art of Intimidating Disgruntled Beneficiaries with In Terrorem Clauses” by Gerry W. Beyer, et. al.

Sandra W. Reed practices Elder Law in Somervell County, handling probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid planning.  She lives on beautiful Chalk Mountain and can be reached at 254.797.0211; 817.946.2809 or at sreed@kbzlaw.com.