Creating and executing a Last Will and Testament is a crucial step in ensuring that your wishes are honored after your death; however, there is always the possibility that your Will could be contested, leading to prolonged legal battles and family discord. Fortunately, there are specific strategies you can employ to minimize the risk of a Will contest and ensure that your estate plan is carried out smoothly. Toward that end, the attorneys at Legacy Care Law Firm explain several steps you can take to avoid litigation after you pass away.
Step One: Consult with an Experienced Estate Planning Attorney
The most important step in preventing a Will contest is to work with an experienced estate planning attorney. An attorney who specializes in estate planning will be familiar with New Hampshire laws and can help you create a legally sound Will that accurately reflects your wishes. Using a DIY Will form dramatically increases the likelihood of disputes that can lead to litigation after you are gone.
Step Two: Focus on Proof of Testamentary Capacity
One of the common grounds for contesting a Will is the claim that the Testator (the person making the Will) lacked testamentary capacity. In New Hampshire, testamentary capacity means that the Testator understands the nature and extent of their property, the natural objects of their bounty (their heirs), and the disposition or gifts that they are making. To safeguard against a claim that you lacked testamentary capacity when you executed your Will, have a physician assess your mental capacity around the time you execute your Will and provide a written statement confirming your capacity. You may also wish to videotape the execution of your Will to demonstrate that you are of sound mind and fully understand the implications of your decisions.
Step Three: Avoid Undue Influence
Another common ground for contesting a Will in New Hampshire is “undue influence” which occurs when someone exerts excessive pressure on the Testator to benefit from the Will. To mitigate the risk of undue influence, ensure that you discuss your estate plans with your attorney in private, without potential beneficiaries present. When discussing your estate plan with anyone, be clear and consistent in your intentions, and document your decisions thoroughly. You may also consider appointing a neutral third party as the Executor of your Will.
Step Four: Include a No-Contest Clause
A no-contest clause (also known as an in terrorem clause) can be an effective deterrent against Will contests. This clause stipulates that any beneficiary who challenges the Will and loses will forfeit their inheritance. While New Hampshire courts will enforce no-contest clauses, they will not apply them if there is probable cause for the contest. Including a no-contest clause can discourage frivolous challenges but should be carefully drafted with the help of an attorney to ensure its enforceability.
Step Five: Communicate Your Intentions Clearly
Lack of communication can lead to misunderstandings and disputes among your heirs. To prevent disputes that can lead to litigation you should strive for open and honest conversations with your family members about your estate plan and the reasons behind your decisions. Consider writing a letter of instructions to accompany your Will, detailing your rationale for the specific provisions. While such a letter is not legally binding, it can help prevent confusion and disputes.
Step Six: Properly Execute Your Will
A Will that is not executed according to New Hampshire law can be easily contested. To ensure proper execution:
- Sign your Will in the presence of at least two witnesses, who should also sign the document.
- Make sure your witnesses are disinterested parties, meaning they are not beneficiaries of the Will.
Step Seven: Update Your Will
You should routinely review and revise your entire estate plan to account for growth and changes in your life. In addition, major life events that may warrant an immediate update include:
- Marriage or divorce
- Birth or adoption of children
- Significant changes in financial status
- Death of a beneficiary or Executor
- Relocation to a new state or country
Step Eight: Consider Creating a Revocable Living Trust
A revocable living trust can be an effective tool for avoiding a Will contest. Since a trust is not subject to probate, it is less likely to be challenged. With a revocable living trust, you can maintain control of your assets during your lifetime and specify how they should be distributed after your death. This provides an additional layer of protection against challenges to your estate plan.
Step Nine: Choose Your Executor Carefully
Appointing the right Executor can help ensure that your Will is executed impartially and according to your wishes. Instead of a family member or friend, you may wish to consider appointing an attorney, a bank, or trust company, to handle the complexities of estate administration and can act as a neutral party in the event of disputes.
Step Ten: Address Potential Conflicts in Advance
If you anticipate that certain provisions of your Will may lead to disputes, address these conflicts in advance. For example, you might make specific bequests to potential challengers to reduce their incentive to contest the Will or set up alternative dispute resolution mechanisms, such as mediation or arbitration, to handle potential conflicts. While it is ultimately your decision to discuss the details of your estate plan or keep them private, providing the basic outline of your estate plan can help prepare people in advance. Knowing what to expect, in turn, can reduce the likelihood of litigation.
Can We Help You with the Steps Necessary to Avoid Litigation After You Are Gone?
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about avoiding a New Hampshire Will contest, contact our estate planning 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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