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Having the Last Word: Motivations Behind Will Contests:

“Before anything else is done fifty cents to be paid to my son-in-law to buy for himself a good stout rope with which to hang himself, and thus rid mankind

of one of the most infamous scoundrels that ever roamed this broad land or

dwelt outside of a penitentiary.”

–From the will of Garvey White *

A will that disinherits or antagonizes a potential beneficiary may invite a will contest. A will contest is a legal proceeding brought by an heir to challenge the validity of a will based on one of the following grounds: (1) the will was not executed with the required formalities; (2) the testator lacked the requisite mental capacity; (3) the will was obtained through undue influence. If the heir successfully proves one of the grounds listed above, the will is denied admission into probate. In other words, the court will treat the challenged will as if it never existed, distributing the estate according to the terms of a previously executed will or the law of intestate succession.

The law of intestate succession is everyone’s default estate plan. California law dictates that if you die without a will your assets will go to your “heirs at law.” Specifically, your separate property (non-community property) will be divided into as many equal shares as there are living members of the nearest generation: (1) children; (2) parents; (3) siblings; (4) grandparents, etc. However, it should be noted that a distribution to one generational level effectively cuts off all levels below. Thus, if you die leaving behind surviving children, the rest of your family will not receive any part of your estate.

What typically sparks a will contest? An heir who is disappointed that he did not inherit a certain amount under your will.

What can you or your estate-planning attorney do to ensure your wishes are carried out after death? One option is to create a living trust. A living trust is a contract, allowing you to transfer ownership of your property from your individual name to your name as trustee of your trust, so that all of your assets are “owned” by the trust for the benefit of your designated beneficiaries. The fact that your property is transferred during your lifetime clearly demonstrates your intent to dispose of your property in a certain way, making later challenges more difficult and therefore less likely. Alternatively, your attorney can draft a will that attempts to detail every possible contingency. Yet another option is to include a “no-contest” clause in your will – a provision meant to scare off legal challenges by disappointed heirs.

Essentially, a no-contest clause forces an heir who brings and loses a will contest to forfeit his inheritance under the challenged will. Therefore, contesting a will with a no-contest clause is a gamble; your disappointed heir is willing to risk losing whatever inheritance you left him in your challenged will, hoping he will win a more significant sum under the terms of your previous will or the law of intestate succession. The bottom line: a no-contest clause is most effective if you give the heir you are seeking to disinherit a large enough share of your estate that he will not want to risk losing it all by contesting the will.

Your attorney can also insert a simple statement of acknowledgement in the will. For instance, you can eliminate any concerns of accidental omission by including the following statement, “I am aware that I have another son, Diego, who is not inheriting property under my will.” California law only provides remedies for mistakenly omitted heirs; a statement that you are aware of the omission ordinarily eliminates these remedies.

Giving a reason for a reduced gift or disinheritance in the will itself is generally discouraged. The accuracy of the statement may be challenged after your death. Moreover, deliberately negative statements may expose your estate to claims of testamentary libel. Ultimately, your best bet is to communicate with your heirs close enough to have a reasonable expectation of inheritance. If you are realistic about the effects of unequal bequests to family members, and honest about your intentions, you are more likely to leave behind a positive emotional and financial legacy.

Attorney Andrea Valdez can be reached at 310.980.6898 or estate.planner@ hotmail.com

* See Paul T. Whitcombe, Defamation by Will: Theories and Liabilities, 27 J. Marshall L. Rev. 749, 751 (1994)(citing John Marshal Fest, Some Jolly Testators, 8 Temp. L.Q. 297, 311(1934)).

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