Like most people, one of your primary motivations for executing a Last Will and Testament is to ensure that your assets will be passed down to the beneficiaries of your choosing after you pass away. With that goal in mind, you undoubtedly want to do everything possible to prevent someone from successfully challenging your Will after you are gone. Toward that end, the attorneys at Legacy Care Law Firm offer some suggestions that can help prevent a New Hampshire Will contest.
What Are the Requirements for a Valid Will in New Hampshire?
The first step toward preventing a New Hampshire Will contest is to create and execute a valid Last Will and Testament. To be valid, New Hampshire law requires a Will to meet all the following requirements:
- The Will must be made by a Testator qualifying under RSA 551:1.
- The Will must be in writing.
- The Will must be signed by the Testator, or by some person at his or her express direction in his or her presence.
- The Will must be signed by 2 or more credible witnesses, who shall, at the request of the Testator and in the Testator’s presence, attest to the Testator’s signature.
What Grounds Can Be Used to Challenge a New Hampshire Will?
Knowing what grounds can be used to challenge the validity of a New Hampshire Will is important when you are actively trying to prevent a future Will contest. Despite what many people think, a Will contest cannot be based solely on the fact that someone is unhappy with the terms of the Will. The law requires the person contesting the Will to allege legal grounds on which the court could declare the Will invalid. In New Hampshire, those grounds include:
- Lack of testamentary capacity. A Testator must have what is referred to as “testamentary capacity” at the time he/she signs a Will. Testamentary capacity is complicated and fact specific; however, it essentially looks at whether the Testator understand his/her assets, understood who would inherit in the absence of a Will, and understood what would happen to those assets according to the terms of the Will executed. New Hampshire law presumes that a Testator did have the requisite capacity to execute a Will, meaning that the burden is on the contestant to prove lack of capacity in a Will contest.
- Undue influence. Undue influence refers to a situation where someone had access and influence over the Testator at the time the Will was created, and that influence caused the Testator to make changes to the Will that the Testator would not have made absent that influence. Usually, the source of the undue influence is a caregiver or someone who intentionally isolated the Testator to use his/her influence during the time surrounding the execution of the Will.
- Technical failure. This occurs when one of the legal requirements for a valid New Hampshire Will is not met. Improper execution of the Will, for instance, could result in the Will being declared invalid.
Steps You Can Take to Help Prevent a New Hampshire Will Contest
Unfortunately, there is no sure-fire way to prevent someone from contesting your New Hampshire Will after you are gone. There are, however, some things you can do to discourage a Will contest and/or decrease the likelihood of a Will contest succeeding should preventing one prove impossible, such as:
- Incorporating a no contest clause in your Will. With some limitations, New Hampshire law does enforce no contest clauses in a Will. A no-contest clause effectively penalizes a beneficiary for contesting your Will, providing an incentive for not bringing a Will contest. You must gift the beneficiary something in your Will that the beneficiary will lose if he/she contest the Will and fails to invalidate the Will.
- Documenting your mental capacity at the time of execution. Lack of testamentary capacity is commonly alleged in a Will contest, especially if the Testator was elderly and/or showing signs of dementia when the Will was executed. To head off claims that you lacked the requisite capacity when you signed your Will, make a point of having a full physical and mental evaluation completed by your primary care doctor around the time you execute your Will. Your physician can then testify to your mental capacity, if necessary, in a future Will contest.
- Addressing the appearance of undue influence. If someone who cares for you is also a beneficiary in your Will, recognize that other potential heirs may make a claim of undue influence after you are gone. Avoid isolating yourself from family and friends to counter a future claim of undue influence.
- Discussing your Will with loved ones. You are never obligated to share the details of your Will with potential heirs; however, doing so can prepare people for the terms of the Will and allow them to bring up questions or concerns now instead of through a Will contest after you are gone.
- Adding a Letter of Instruction to your estate plan. If you are not comfortable discussing the terms of your Will with loved ones now, consider adding a Letter of Instruction to your estate plan. While this is not a legally binding document, it does provide you the opportunity to explain controversial decisions in your Will that might otherwise be used as the basis for a Will contest.
Contact Our Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions about what you can do to prevent a New Hampshire Will contest, contact our estate plannning attorneys in our North Andover, Woburn, and Beverly offices at (978) 969-0331. Our Salem and Nashua, New Hampshire office can be reached at (603) 894-4141.
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