by Larry A. Flournoy, Jr.
An impending will contest is like a nightmare that you just are not able to wake up from. It is a messy ordeal that puts more at risk than an estate’s assets; it can ruin families and potentially the drafting lawyer’s reputation. No matter how careful a drafter, as long as money motivates people, you may be subject to potential challenges against a will that you drafted.
While there is no magic language that completely insulates against a will contest, there are some tips and tricks that can be utilized to reduce the chances of a successful challenge:
While no-contest clauses are supposed to strike fear into a beneficiary and prevent contests, Texas Lawyers need not live in terrorem of no-contest clauses. Section 254.005 of the Texas Estates Code codified the good faith and just cause exceptions to a no-contest clause. While these clauses remain enforceable in Texas, have they lost their teeth due to the statutory exceptions? Unfortunately, some uncertainty will remain until Texas courts interpret these exceptions and provide further guidance. Nevertheless, the practice of inserting a no-contest clause into a will is still the most common deterrent to an unknowing, potential, will contestant.
Certify Testator’s Capacity
Issues surrounding a testator’s capacity give litigators fodder in a will contest. In order to circumvent capacity concerns, there are some precautionary measures that drafters can take. Before testamentary documents are drafted, you can encourage your client to obtain a doctor’s letter certifying their capacity. If drafters are confident of their testator’s capacity and communication skills, videotaping the execution ceremony is another option. However, this a widely debated tactic. While videotaping could be persuasive evidence that the testator had sufficient mental capacity, it can also be ammunition to attack the will. For example, such videos could cause jurors to presume that the testator, due to advanced age or physical appearance, lacked capacity or question why it was videotaped in the first place.
Have the Testator Handwrite a Letter
Rather than expressing the reasons for disinheritance within the will, the testator could handwrite a letter explaining the reasons for disposing of his or her estate in the specific manner. Relying on the letter, drafters could draft a will consistent with its contents and retain the letter as proof of testamentary intent. Having such a letter, may help to show that the disinheritance was not the result of undue influence, but measured consideration. Of course, if the testator’s handwriting is shaky, illegible, or the letter is written by someone else on behalf of the testator, this could create new grounds for a contest that would not have existed without the letter.
Upfront Gifts Outright to Beneficiaries
In the event that a potential beneficiary is likely to be litigious after the testator’s death, drafters may suggest that outright gifts occur immediately post mortem. This tactic may be successful to bar claims from a beneficiary who has already collected on a specific bequest under a will. Generally, a party who accepts benefits under a will is estopped from contesting that will. But, it is important to note that there may be an exception to this rule recognized in the Dallas/Fort Worth area. The Dallas court held that a person who received benefits under a will may not be estopped to contest that will if the person would have received the same or a greater amount under another will of the testator or under the laws of intestacy. Holcomb v. Holcomb, 803S.W.2d 411, 414 (Tex. App. Dallas Jan. 8, 1991). This exception is not recognized by all jurisdictions, so this tactic may still be effective in other parts of the state. See In re Estate of McDaniel, 935 S.W.2d 827, 829 (Tex. App. Texarkana Oct. 4, 1996).
Consider Pre-Death Gifting and Non-Testamentary Transfers
Instead of having to worry about the timing of upfront gifts, another method used to avoid contests is to refrain from using a will to transfer property. Methods include inter vivos gifting, trusts, multi-party payable upon death accounts, beneficiary designations and joint tenancy with right of survivorship deeds. While not completely shielded from challenges, it may be harder for those opposing non-testamentary transfers because they are difficult to trace in comparison to testamentary assets and are subject to different challenge standards.
Utilizing these preventative measures may go a long way towards protecting you and your practice from the costly consequences of having a will that you drafted challenged.
Larry A. Flournoy, Jr. is a partner at Jordan Flournoy LLP. He can be reached at email@example.com.