The following situation begs the question, “Can you prevent a Will from being contested?” A 65-year-old woman wishes to have her estate organized by an executor, with the request that 90% of her assets be left to one of her grandchildren. She asks how she can be sure the executor will decide how to distribute her assets when the grandchild is 25 years old. To add a twist, there are several other grandchildren.
This situation, described in an article, “’ The situation is extreme’: I’m 65 and leaving my estate to only one grandchild. Can the others contest my will?” from MarketWatch, reveals the dangers of not understanding estate planning basics.
The executor has nothing to do with when or how to distribute assets to heirs. Their role is to follow the directions in the will, which should be expressed by the testator, or the person creating the will.
In cases like this, a will should be created by an experienced estate planning attorney. It should include the names of all individuals included in the distribution and those who should be excluded. An estate planning attorney may advise this person to create a trust, with a trustee to carry out their instructions, in addition to the will. The terms of the trust must be crystal clear, so that no one can challenge the trust, and the same applies to the will.
How to do this? While you can’t prevent someone from challenging a will, and an executor can’t take on the role of enforcer, an experienced estate planning attorney will know how to create an estate plan to withstand challenges.
First, make sure the will and trust are created when you are healthy, and of “sound mind and body.” Once someone starts displaying signs of dementia, it is easier to challenge a will or trust and claim the person wasn’t competent to make decisions. The trust and estate attorney will also know the law in your jurisdiction about creating and finalizing these documents. In some states, you only need one witness to finalize a will, while in others, you need two people. This is a minor detail. However, it can render an estate planning document invalid.
Here is a useful clause in a will that can prevent a will from being contested: There is a clause used in some states known as the in terrorem clause. Any beneficiary who contests the will automatically forfeits their right to inherit anything from the estate. This clause is used (where permitted) when a will challenge is expected. If this is allowed in your state, your estate planning attorney will know how to incorporate it into your will.
A common reason for wills and trusts to be deemed invalid might surprise you. People often neglect to put their final signature on a will or trust. A will could be entirely correct and well prepared. However, if it’s not signed, it’s not valid.
There are also trusts specifically created for individuals with disabilities, known as Special Needs Trusts. They are designed to benefit heirs who may not be able to manage an inheritance or who receive means-tested government benefits and may not own more than a certain amount of assets. Special Needs Trusts are also used by families who have a member with a substance abuse issue.
The best advice for this grandmother, who favors one grandchild, is to meet with an experienced estate planning attorney to discuss the situation candidly and outline her goals. She must make the decisions about how her estate is to be distributed and put them down on paper, so the executor can follow her directions. The attorney can help her incorporate language that can help prevent the will from being contested.
If you are in need of creating or updating your will and you have this same concern as the 65 year lady in this article, talk to us. A free phone consultation is available to any prospective client who is not already working with us. Click here to schedule. Current clients may call our office directly to schedule an in-office appointment.
Reference: MarketWatch (May 30, 2025) “’The situation is extreme’: I’m 65 and leaving my estate to only one grandchild. Can the others contest my will?”
