How to Write a Will That Can Survive a Probate Contest

A will is an essential part of estate planning. It contains your core instructions for the management and distribution of your property upon your death. However, even a carefully written will may be subject to challenge by your heirs or other interested parties. With this in mind, you can take certain steps designed to ensure your will can survive a probate contest.

If you are concerned that a family member may contest your will in hopes of gaining a more significant part of your estate, you can include a provision in the will that penalizes anyone who brings a challenge. A no contest clause forces the challenger to weigh the risk of losing property given to them under the existing will against the additional amount they hope to gain by contesting. If the beneficiary challenges the will and loses, they are automatically disinherited and receive nothing.

Another vital step is making sure your will is properly drafted and does not include conflicting or ineffectual instructions. An experienced estate planning attorney can make sure your will is consistent in its terms and provides for what happens if any bequest cannot be carried out as directed.

Individuals can challenge your will on the ground that you allegedly were not mentally competent at the time the will was drafted or signed, or that you were subject to undue influence by another person. A positive action you can take to counter any claims regarding your mental competency or independence is to video record the entire will execution process. A video recording will allow you to demonstrate that you were of sound mind and were thinking and acting freely at the time.

Failure to adhere to will-execution requirements set by New York law is another ground for a contest. A will needs to be signed and be declared to be a will in the presence of two witnesses, who there and then must sign attestations that this process occurred. If a will is only signed in the presence of one witness, or if the witnesses sign later when you were not present, the will may be challenged.

The Law Office of Maurice J. Verrillo, P.C. provides effective Christian faith-based legal services in Rochester and the surrounding areas. Mention our website when you call us at 585-563-1134 or when you contact us online and receive a free 30-minute initial consultation. We offer convenient business hours and offer evening and Saturday meetings by appointment.


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