Avoid fights over your estate

Howard M. Helsinger, JD’78, taught trusts and estates at the Law School for many years. A partner in the Chicago firm Sugar Felsenthal Grais & Hammer LLP, here he offers advice on estate litigation.

Estate litigation: the rules

There are two basic grounds for contesting a will or trust. One is that the decedent wasn’t competent. The standard of competency for making a will is low, so proving incompetency can be difficult. Strange behavior isn’t enough, and lucid moments may be all that are needed.

The second and more common ground is undue influence. Was the decedent susceptible to influence, and did the influencer have a special fiduciary or confidential relationship with the decedent? This claim is often brought when a will benefits a caregiver, whether the caregiver is a home care aide, a friend, or a family member. The will may be particularly vulnerable if a change was made by a frail elderly person shortly before her death.

Who fights and why?

The root causes of much estate litigation are love and money. A contest by a child may seem to be about money (“You got more than me.”) but may really be about love (“He loved me more.”). If a childless decedent leaves everything to friends or to charity, distant kin may contest the will because, if the will is deemed void, all property will pass by intestacy to the nearest kin, however remote.

Usually people leave their entire estate to their spouse or, if unmarried, to their children equally. If the decedent’s estate plan deviates from this pattern, a court may want clear evidence that the deviation isn’t due to incompetency or undue influence. Deviations likely to provoke estate litigation include second marriages, gifts to caregivers, and preference of one child over others.

Plan ahead

Your estate planning attorney can help you understand and plan for the risk of estate litigation. Your will can include a no-contest clause that denies any part of your estate to a contestant. However, it may be effective to provide a bequest of some sort to a potential contestant; otherwise, they have nothing to lose by suing. Most contests settle due to the risks and costs.

To shelter unusual gifts from litigation, consider using inter vivos trusts, insurance, or lifetime gifts, which may not be subject to the same challenges as a will.

To demonstrate that you have sufficient mental capacity at the time you sign your will, your attorney may suggest that you sign a series of documents at intervals. A contestant would have to begin by challenging the most recent, and if that were successful would have to attack successively each prior document, rearguing incompetency each time. As another precaution, when documents are signed witnesses might be asked to independently record their impressions of your competence and independence.

The best precaution may be to discuss your plans with your family so they know your intentions and are not taken by surprise. These conversations can also help you recognize and perhaps respond to their financial and emotional needs.