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Avoiding a will challenge

A combination of sloppy drafting and bad circumstances can lead to estate litigation involving beneficiaries challenging a will. There are several ways, however, to help avoid this legal dispute.

The person who makes the will, the testator, must be competent by understanding the type and extent of the estate's assets, the disposition intended in the will and the contents of the will. A will cannot be executed through undue influence on the testator.

Competency can be show through a medical evaluation of the testator's cognitive abilities. A written report should be drafted with a HIPAA waiver that allows distribution of the report after the testator's death.

Absence of undue influence can be established with a third-party interview by an objective and credible person whose report may also be distributed after the testator's death. These precautions can also defend against lawsuits claiming that a person unlawfully interfered with the will's drafting or execution.

A forfeiture clause may also prevent a challenge. These provide that one or more individuals put their inheritance at risk if they challenge the will. The asset that is forfeited, however, should be reasonably valuable to deter a contest. This clause should also identify a person who is responsible for defending this clause and their reasonable compensation.

Granting a specific gift or a pecuniary gift for a specific dollar amount can help limit a beneficiary from criticizing or challenging an executor's or administrator's actions overseeing the estate. It may also restrict the beneficiary's interest in the estate.

Other precautions include keeping record of the testator's intent. Setting forth and customizing the executor's duties may prevent questions about their actions. Using a business entity to manage an inheritance for a difficult beneficiary also provides more protections.

An attorney can help provide numerous options on this and other estate issues. They can also draft valid documents that have a better likelihood of withstanding challenges in Arizona.

Source: Wealth, "The difficult beneficiary," By Dawn S. Markowitz, Jan. 24, 2018

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