How to Minimize Clashes Among Your Estate Beneficiaries

A will contest can delay probate of an estate and distribution of its assets for an extended period of time. Contests often arise when family members feel shortchanged of their rightful inheritance. To avoid such litigation, will drafters sometimes include a no-contest clause, providing that anyone who challenges the will forfeits any right to proceeds from the estate. No-contest clauses are unenforceable under Florida law, but there are other steps you can take to help minimize clashes among your estate beneficiaries over your will.

The most important preventive measure you can take is to create a will that is clear and unambiguous in its terms. Contests often target confusing or contradictory clauses that cast doubt on the intent of the will’s creator (the “testator”). Examples are clauses that leave property to a beneficiary who is deceased or to a spouse whom the testator has divorced. Your will should provide for all contingencies and name alternative beneficiaries, so that your intentions are made clear.

Next, execute your will properly. It must be signed in the presence of two witnesses, who must also sign and attest that you declared the document to be your will. It also needs to be notarized. If these formalities are not observed, your will can be denied probate.

You should also take precautions to discourage will contests that can be based on these grounds:

• Lack of testamentary capacity — For a will to be legally valid, the testator must be mentally competent and must understand the nature of his or her actions. This can be established in a number or ways, such as a doctor’s certification or a video of the will’s execution that includes an interview of the testator.
• Undue influence — A will challenger may claim that the testator was manipulated by another person, such as a caretaker or other close relative who takes advantage of their relationship or of the testator’s vulnerability. Make sure you do not involve beneficiaries in any stage of the will-drafting process.
• Fraud or coercion — Wills can be contested on the grounds that they are the product of deceit or fraud. Executing your will on video can provide persuasive evidence of your knowing and willing participation.

Advance communication with your beneficiaries is also recommended. Explain the reasoning for your bequests in a letter or other document that is separate from the will. This document can include such details as the location of your will and personal records, contact information for your attorney and testator and instructions to be followed upon your death. A copy of the document should be kept with your attorney. It may be admissible evidence in a will contest.

The experienced estate planning attorneys at Bankier, Arlen & Snelling Law Group, PLLC in Delray Beach can help you take positive steps to minimize clashes among your estate beneficiaries. To arrange a consultation, please call M. Adam Bankier at 561-278-3110, Robert M. Arlen at 561-279-1880 or Linda L. Snelling at 561-501-7778 or contact us online.