No-Contest Clause

When Should a No Contest Clause Be Included in My Will?

Deciding whether a no contest clause should be included in your will is an emotionally charged decision. Parents who sit down with an estate planning attorney would much rather talk about their grandchildren and how much they are looking forward to retirement.

When should a no contest clause be used in my will?
One of the main reasons to use a no contest clause is to deter a family member from challenging the distributions in your will.

But, when the discussion turns to how they want to distribute their assets, as reported in the article “Why is it called a ‘No Contest’ clause?” from The Daily Sentinel, the problem is revealed.

The parents share that there is a family member, an adult child, who has never been part of the family. Usually they have had a troubled past, pushed others in the family out of their lives and it’s heartbreaking for all concerned.

The discussion then moves to determining how to handle that family member with respect to their estate plan. “Do you want her to be part of your estate plan?” is the least judgmental question the attorney can ask. In many cases, the parents say yes and say they’ll keep trying to foster some kind of relationship, no matter how limited. In other cases, the answer is no.

In both cases, however, the concern is that the difficult child will fight with their siblings over their inheritance (or lack thereof) and take the battle to court. That’s one of the primary reasons a no contest clause should be included in a will.

As long as estate planning documents are prepared and executed correctly, they will survive a legal contest. However, putting in a no contest clause creates another barrier to an estate battle.

The no contest clause is intended to act as a strong deterrent for those individuals who believe they are entitled to more of the estate. It makes it clear that any challenges will result in a smaller portion of the estate, and possibly no inheritance at all, depending upon how it is written.

Both parents need to have a no contest provision included in their wills. The message is clear and consistent: these are the estate plans that we decided to create. Don’t try to change them.

For families with litigious family members or spouses who married into the family and feel that they are not being treated fairly, a no contest clause makes sense to protect the wishes of the parents.

Speak with an experienced estate planning attorney about how a no contest provision might work in your situation. If your family doesn’t need such a clause, count your blessings!

Reference: The Daily Sentinel (Aug. 10, 2019) “Why is it called a ‘No Contest’ clause?”

Why Do I Need an Estate Plan?

Investopedia’s recent article, “4 Reasons Estate Planning Is So Important,” says you should think about the following four reasons you should have an estate plan. According to the article, doing so can help avoid potentially devastating consequences for your family.

  1. An Estate Plan Keeps Your Assets from Going to Unintended Beneficiaries. A primary part of estate planning is choosing heirs for your assets. Without an estate plan, a judge will decide who gets your assets. This process can take years and can get heated. There’s no guarantee the judge will automatically rule that the surviving spouse gets everything.
  2. An Estate Plan Protects Your Young Children. If you are the parent of minor children, you need to name their guardians, in the event that both parents die before the children turn 18. Without including this in your will, the courts will make this decision.
  3. An Estate Plan Eliminates a Large Tax Burden for Your Heirs. Estate planning means protecting your loved ones—that also entails providing them with protection from the IRS. Your estate plan should transfer assets to your heirs and create the smallest tax burden as possible for them. Without a plan, the amount your heirs may owe the government could be substantial.
  4. An Estate Plan Reduces Family Headaches After You’ve Passed. There are plenty of horror stories about how the family starts fighting after the death of a loved one. You can avoid this. One way is to carefully choose who controls your finances and assets, if you become mentally incapacitated or after you die. This goes a long way towards eliminating family strife and making certain that your assets are handled in the way you want.

If you want to protect your assets and your loved ones after you’re gone, you need an estate plan. Without one, your heirs could face large tax burdens and the courts could decide how your assets are divided or even who will care for your children.

Reference: Investopedia (May 25, 2018) “4 Reasons Estate Planning Is So Important”

I Was Left Out of a Will—What Can I Do?

It’s a stinging feeling. To be left out of a will feels like a rebuke from beyond the grave. You’ll need to set aside your emotions and consider your options, which may be limited.

Contested wills are not an easy battle. There are time limits to taking action. An estate planning attorney will be able to advise you on the requirements of your state. Investopedia’s article, “What To Do When You're Left Out Of A Will,” explains that you’ll need to be able to prove outright fraud, diminished mental capacity or coercion to have a will's terms dismissed.

GavelBefore making a federal case out of it, cool down for a few days and think things through. If you aren’t a family member and were never named in a previous will, you can’t contest the will. If the deceased talked to you about an inheritance before, write down as much as you can remember and estimate the dollar value (whether in money or possessions). If it was never discussed but was implied, you’ll need to give a high and a low estimate on what you could have reasonably received based on your knowledge of the estate. If this amount doesn’t cover your legal fees, forget it. You may even walk away, if it’s twice as much as the retainer because some estate battles cost more in legal fees than the inheritance. Again, consider this carefully.

The person who creates the will has the final word on who is and who is not in the will. If you have reason to believe that the will has changed, maybe because the person was under duress or suffering from diminished mental capacity, you can try to find out the details. You can ask the executor for the current will, any previous versions and a list of assets.

A sharp executor will compare copies of the will and note any significant changes. Therefore, it’s possible that a notice from the executor will be your first signal that you were removed from the will. If you aren’t told before the will goes to probate, you’ll be able to get a copy from the probate court. In addition, you’ll be told how long you have to contest the will. Each state has different rules and time limits, so ask a local estate planning attorney to help you get the copy and file the contest.

To contest the will, you need a valid reason. You need to reasonably prove that the testator lacked the mental capacity to understand what he was doing when the current will was signed, was pressured into changing it or that the will fails to meet state requirements and isn’t legal.

Your attorney will honestly tell you if you have a winnable case on these grounds. If you don't have grounds, there’s still a chance you can make a claim on the estate. For instance, if you did unpaid work for the testator, you may be able to claim costs. Again, look at the value of the claim versus the costs of moving forward.

With sufficient grounds, your attorney will file a contest against the will with the objective of invalidating the current will and enforcing a previous will that lists you as a beneficiary. If you’ve been left out of several revisions of the will, your chances of winning the dispute will be less because multiple wills must be invalidated. The burden of proof is on you, so be ready for a tough fight.

Instead of a court battle that will deplete your finances and those of the estate in legal costs, your attorney may be able to get the estate to agree to mediation. Mediation may be a better and faster resolution than a lengthy court battle.

Keep in mind that an estate contest comes with a great deal of emotional stress and could have a big impact on your relationship with family members or friends of the deceased. It is not easy to be left out of a will, but a realistic look at the financial and emotional cost of a battle that you may or may not win should be considered before throwing yourself into an estate contest.

Reference: Investopedia(May 31, 2018) “What To Do When You're Left Out Of A Will”

What Happens When an Estranged Daughter Shows Up…After Her Father is Gone?

Kim, who goes by the name Viola La Valette, is after part of her father’s $900 million estate.

She says her father was suffering from Alzheimer’s disease, and that’s why he cut her out of the will. However, she also hadn’t seen or spoken to him for more than two decades.

GrundyregThere’s a big estate battle brewing in Britain, where the 61-year-old daughter of Reg Grundy, Kim Robin Grundy, is challenging her father’s second wife with a will contest. Kim, who goes by the name Viola La Valette, is after part of her father’s $900 million estate. The fact that she refused to see him, even while he was supporting her, is not making her a popular figure.

Starts at 60’s article, “Reg Grundy’s daughter says he had Alzheimer’s when he cut her from will,” says that the TV tycoon, who was responsible for Australian shows like Neighbours and Wheel of Fortune, died in May 2016 at the age of 92. He left the majority of his estate to his wife.

However, his daughter is now investigating his mental state and health before he died.

La Valette, who is Reg’s daughter from his first marriage to Patricia Lola Powell in 1954, appeared in court recently to formally contest the will.

Her attorney reportedly claimed that Grundy suffered from “Alzheimer’s disease and cognitive impairment” before he died.

It was previously reported that La Valette refused to see her father and cut off all contact with him for more than 20 years before he died, which left him heartbroken. His wife said at the time that he had always supported his daughter and allowed her a glamorous lifestyle. Because of this, she never had to work and could live in luxurious hotels.

Alzheimer’s disease is one of more than 100 types of dementia. The disease presents differently in each individual. As a result, it’s difficult to definitely know when a person may lose his capacity to make important decisions.

The term “capacity” means that an individual has the ability to understand decisions about important personal matters, can voluntarily make those decisions and can communicate those decisions to others. Because of the unknowns with Alzheimer’s disease and dementia, it’s crucial to make plans while a person still has capacity.

Having a will in place in the early stages of any type of dementia or before any issues of capacity arise is critical to the success of an estate plan.

It’s not yet known if Grundy really had Alzheimer’s disease or any kind of dementia.

Reference: Starts at 60 (August 6, 2018) “Reg Grundy’s daughter says he had Alzheimer’s when he cut her from will”

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