Steps Taken While Testator is Alive Can Play a Key Role in Upholding Client’s Estate Plan After Death – Journal | December 1999

December 04, 1999

A few careful steps taken during a testator’s life can minimize the chances of a will contest and protect the objectives set out in estate planning documents. Plans that involve the disinheritance of children or a second marriage call for special scrutiny.

The success of the planning effort may also depend on who is named as the executor of the will, the choice of witnesses, the content of prenuptial agreements and a decision on whether the will should include an in terrorem clause. Some consideration should also be given to the possibility of establishing a lifetime trust.

Recognizing the Signs

The first step in good defensive estate planning is identifying situations that are likely to prompt a will contest. The precipitating causes of one-third of will contests are divorce and remarriage. “Most of these contests are brought by children and stepchildren.”1 A recent study indicates that of 267 will contestants, 192 (or 71.9%) were either stepchildren or children, while only 36 (or 13.5%) were spouses.2

Statistics like these lead to the obvious conclusion that a contest is very possible when a child is receiving less favorable treatment than siblings, or children are receiving less favorable treatment than a stepparent.

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Reprinted with permission from: New York State Bar Association Journal, December 1999, Vol. 71, No. 9, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

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