I often get asked why I favor a trust over a will when drafting estate plans. Sometimes a will works well for someone, particularly if the estate is very small and simple. One of the big reasons I don’t favor wills is that they are easier to challenge in court than a trust. Challenging or contesting a will can just add more chaos and pain to an already difficult time when someone dies.
A will, unlike a trust, has to go through probate. That means the will is filed in the court and becomes a part of the public record. Anyone can see what assets you had and which ones you left to certain people and organizations. Unfortunately, death can bring out the worst in people. Individuals who you would never think would fight or care about possessions suddenly can become very difficult.
There are several ways a person can challenge your will. He might claim that you were under the undue influence of someone when you drafted your will and that the will does not actually represent your wishes. She might claim that your will was not executed correctly, in accordance with Massachusetts law. He might claim that you didn’t have capacity when you drafted and executed your will, which means you weren’t of “sound mind and body,” due to mental illness or medication. She might claim that there was fraud, such as your signature was forged.
There are certainly situations where these claims may be valid and need to be raised. But when it is a challenge simply brought by someone who is left out of the will or who is angry he or she didn’t inherit something he or she wanted, then it’s an unnecessary delay at an already difficult time.
What happens when you contest a trust? I will discuss that legal question in a future blog post so keep checking back or follow Windhorse Legal on Facebook to see when I post it.
If you have more questions concerning the contesting of wills or want to talk to me about drafting a will or trust, contact me today.