REDUCING POTENTIAL for a WILL DISPUTE
Will - Updating Will - Invalid or No Will - Power of Attorney - Personal Directive
To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
It is imperative that you take appropriate steps to reduce the potential for a will dispute, especially where the facts or circumstances might suggest the prospect of a looming dispute (e.g., elderly/infirm testator [person making the will], excluding specific family members). Given that a will dispute can be costly and stressful for your loved ones, it is appropriate that you take steps to minimize its potential. Where possible, you want to take appropriate steps to reduce the potential for a will dispute, including:
A. Work with an Experienced Wills and Estate Planning Lawyer
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Ensure Legal Validity: The most crucial step is to have a legal professional draft your will. They will ensure it complies with all state or provincial laws for proper execution (signing, witnessing) and help avoid technical flaws that can easily lead to a challenge.
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Document Intent: A lawyer will create detailed notes of your instructions and your reasons for certain decisions, which can serve as powerful evidence of your true intentions if the will is later questioned.
B. Prove and Document Mental Capacity
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Capacity is Key: A common ground for a will contest is the claim that the testator lacked the necessary testamentary capacity (sound mind) at the time of signing.
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Medical Evaluation: If you are elderly or have health issues that could raise questions about your mental state, consider getting a letter or statement from a physician, geriatrician, or psychologist confirming your mental capacity around the time the will is executed.
C. Avoid Any Appearance of Undue Influence
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Isolate the Process: To prevent claims that you were pressured or coerced, ensure that no beneficiary is present when you discuss your estate plan with your lawyer or when you sign the will.
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Independent Witnesses: Use witnesses who are not beneficiaries of the will and are not spouses/partners of beneficiaries. This makes it harder for someone to claim the witnesses were biased or stood to gain.
D. Memorialize Your Reasoning
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Letter of Wishes: Write a separate, non-binding Letter of Wishes (or Memorandum of Intent) to accompany your will. In it, you can explain your reasons for specific bequests, particularly if you are disinheriting a family member or giving unequal shares. This can preemptively address disputes by providing context.
E. Include a "No-Contest" Clause
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The Deterrent: A no-contest clause (or "in terrorem" clause) states that if a beneficiary challenges the will in court and loses, they forfeit any inheritance they were originally designated to receive.
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Strategy: For this to be an effective deterrent, you must leave the potential challenger an inheritance large enough that they would be unwilling to risk forfeiting it.
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Note: As the Alberta Court of Appeals decision in Mawhinney v Scobie, 2019 ABCA 76 (CanLII) reveals, the drafting and application of no-contest clauses (in terrorem clauses) needs to be carefully undertaken, with the enforceability of these clauses varying by jurisdiction.
F. Keep Your Will Updated
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Review Regularly: Review your will and estate plan after any major life event, such as a marriage, divorce, birth of a child, death of a beneficiary, or significant change in your assets.
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Show Clear Intent: A consistently maintained and updated will demonstrates a clear, continuous intent, making it harder for someone to claim it is outdated or unintentional.
Our law firm can help you plan for the future, including the preparation of a well-drafted will and other estate planning documents, as well as dealing with the legal demands associated with the passing of a loved one. We welcome you to contact our law firm today at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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