“Bullet-Proofing” Your Estate Plan

by Kirk R. Wilson, J.D., LL.M.

 

Will your estate plan disappoint someone?  Is one child receiving less than the others?  Are you remarried and leaving your estate to your new (and younger) spouse with no current provision for the children from your first marriage?  Are you disinheriting someone?  Do you have mental capacity issues?  Are you leaving a substantial gift to someone who has been actively involved in the preparation of your will or trust?  These are a few of the many “red flags” suggesting a possible future contest to your estate planning documents.  If your estate plain raises any of these flags, what can you do to make your estate planning documents as “bullet-proof” as possible?

 

The first thing you need to know is that the law is on your side.  Even though estate and trust litigation is a growing area of law practice in California, very strong evidence is required to successfully contest a will or trust, and a contestant has the legal burden of proving his or her case by a “preponderance” of the evidence. 

 

Legal Grounds for Contesting a Will or Trust

The primary grounds for contesting a will or trust are “lack of capacity” and “undue influence.”  To prove “lack of capacity” it must be established that a person was of unsound mind and lacked the capacity to execute a will or trust at the time the document was signed.  However, the law presumes that a person has legal capacity to act.  To overcome this presumption, a contestant must present persuasive evidence of a “deficit” in that person’s mental functioning and of a correlation between that deficit and the act in question. 

 

California court cases have said that characteristics like old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absentmindedness, or mental confusion do not necessarily establish that a person lacks capacity. This means that lack of capacity is very difficult to prove.

 

The other primary ground for contesting a will or trust is “undue influence.”  This requires direct proof that the person signing the will or trust was under such extraordinary and abnormal pressure to sign the document (from the alleged influencer) that it destroyed that person’s freedom of choice.  This is also very difficult to prove, particularly since the person who was allegedly influenced is dead and cannot testify. 

 

For this reason, the courts have fashioned an alternative approach that shifts the burden of proof when the following three elements are present:  (1) the alleged influencer was in a “confidential relationship” with the maker of the will or trust; (2) the alleged influencer “actively participated” in the preparation of the will or trust; and (3) the alleged influencer “unduly benefits” from the will or trust.  If all three elements are established by a preponderance of the evidence, the court will shift the burden of proof to the require the person asserting the validity of the will or trust to prove that is was not procured by undue influence, which usually means that the contestant wins. 

 

Other less common grounds for invalidating a will or trust are equally difficult to prove.  They include “fraud,” which requires showing that a person was deceived into signing a will or trust that he or she would not have signed in the absence of fraud, “duress” which requires a showing that a person signed a will or trust under a threat of bodily injury or confinement, or “mistake” where a person signs a will or trust under the mistaken belief that they were signing some other document.  The final ground for invalidating a will or trust is to prove that the maker of that instrument later revoked it. 

 

Looking objectively, then, at what is required to invalidate a will or trust, it is clear that it takes much more than merely being a disappointed heir to prevail.  It requires very strong factual evidence of lack of capacity, undue influence, fraud, duress, mistake or revocation to succeed with a will or trust contest.  With this legal framework in mind, let’s consider the steps that can be taken to substantially reduce the risk of a successful challenge to your estate planning documents. 

 

Strategies for Dealing with Mental Capacity Issues

If there is a concern about your mental capacity – perhaps you have become very forgetful, or you are sometimes confused – there are a number of steps that can be taken to “bullet proof” your estate planning documents.  The first is to ask your doctor to provide you with a letter evaluating your current mental capacity.  Even mild to moderate dementia is not of itself sufficient to prevent you from creating or modify your estate plan provided that you retain at least a core mental competency.  A doctor’s declaration, or a report from a mental health professional who has examined you, confirming your core capacity, will be invaluable evidence if a contest is later threatened or filed.

 

Your estate planning attorney is also a very important ally in this arena, since your attorney and your doctor will be the most important witnesses in any trial that may later take place.  An experienced estate planning attorney will take extensive notes during your meetings that will document his or her evaluation of your capacity and your reasons for leaving your estate as set forth in your will or trust.  These notes will be invaluable evidence if a contest is threatened.

 

To make your will or trust less vulnerable to attack on the ground that it was too complex for you to understand given your limited mental capacity, your attorney can prepare a simplified “plain English” will or trust for you which deletes all non-essential provisions to make it more easily understood.  Your attorney may even suggest using a simple will rather than a trust for the same reason.  If your eyesight is poor, a large type font can be used. 

 

If mental capacity is a serious issue, another option is to petition the court for the appointment of a conservator so that the conservator can obtain a court order creating an estate plan for you that will not be subject to later attack.

 

Strategies for Avoiding a Claim of Undue Influence

In order to avoid a challenge to your estate planning documents on the basis of alleged “undue influence” an experienced estate planning attorney is your most important ally.  Your attorney will hopefully have met with you alone, outside the presence of the alleged influencer.  Your attorney will have asked the hard questions about your relationship with the alleged influencer, determined your reasons for providing for that person, and perhaps not providing for others who might be expecting to receive something from your estate, satisfied himself or herself that you were not being unduly influenced, and taken and retained detailed notes from those meetings.  Consequently, your attorney will be your most important witness to refute the allegations of undue influence.  In fact, the value of having an experienced and credible estate planning attorney testify in support of the validity of your will or trust cannot be overstated.

 

Eliminate Unpleasant Surprises

If  you are going to leave less to one child than the others, or to make any other provision that you know will cause someone to be disappointed, rather than letting that person find this out after you are gone and while they are grieving, it is far better to have them hear this from you now.  Eliminate any unhappy surprises and explain your reasoning.  This will diffuse the anger and greatly reduce the likelihood of a later contest to your estate plan.

 

Alternatively, if you can’t bring yourself to lay your cards on the table now, you may want to consider leaving a letter or even a videotape explaining your reasons for leaving them less than they may be expecting.  Hearing this directly from you rather than reading words on a page from your will or trust will be much less hurtful and more convincing than the cold formality of an estate planning document.

 

“No Contest” Clauses

For years wills and trusts have routinely included a provision that disinherited any heir who unsuccessfully contested those documents.  However, these provisions created so much litigation that the law in California was changed at the beginning of this year to drastically limit the effectiveness of a “no contest” provision.  Such provisions are now unenforceable except in very limited circumstances, for example when a “direct contest” is brought without “probable cause.”  Accordingly, many attorneys are no longer including these provisions in their wills and trusts.

 

Conclusion

By understanding what a contestant must prove to invalidate your will or trust, and taking reasonable precautions to minimize your exposure to a contest, you can make your estate planning documents virtually “bullet proof.”