- Cole Gorman
How can I make it harder to challenge the validity of my will?
As the old saying goes, “where there’s a will, there’s a lawsuit.” It’s an unfortunate truth of estate planning that, all too often, children, nieces, nephews, cousins and other distant family members try to challenge the validity of their deceased loved one’s will, in order to try to get a greater share. While there’s no way to prevent will challenges completely, there are steps you can take to make it more likely that your estate plan will survive a lawsuit, and that your assets will go to their intended recipients.
Tennessee law establishes very specific rules concerning the execution of wills. When you finish drafting the will, you must make sure you have two witnesses present before you sign it. You must sign the will in their presence, and they then both must sign it in each other’s presence.
Complying with this rule will prevent someone from asserting in court that your will isn’t valid because it was executed improperly. If you create your will with the assistance of a licensed attorney, they will make sure to follow this rule, as well as all other rules established by Tennessee law.
Another common challenge to wills comes in the form of an assertion that the testator (the person creating the will) lacked testamentary capacity. Testamentary capacity means soundness of mind and the ability to understand the significance of a will, and the extent of one’s property.
In other words, someone might challenge your will by trying to prove that you didn’t know what you were doing when you made your will, either due to diminished cognitive functions, or due to improper pressure and influence from someone near you to write your will in a specific way.
This is another reason why witnesses are so important. They will be able to testify that you were sound of mind, that you remembered your family members and their relationship to you, and that you were disposing of your assets exactly as you wanted to, without any improper external pressure.
It’s always tragic to see families fighting over an estate rather than coming together to mourn their loved one. With the proper steps, you can help to minimize the chances of this occurring in your family after you’re gone.