Any lawyers here -- or someone who wants to play one on DU?

[LiberalHeart]

I have a question about wills and living trusts: If one inserts a statement that anyone who disputes the terms of the will/living trust will be disinherited, does that actually do any good -- or can people challenge the document and still inherit?

[wildhorses]

1. i would think that at any given time any given person can contest

anybody for anything ....

[LiberalHeart]

2. contest, yes -- but prevail?

I'm just wanting to know if the statement inserted in the documents has any weight.

[wildhorses]

3. i am NOT a lawyer but, i would think that the case could be

argued and depending on the circumstances on a case by case basis...could go either way

the case would be heard and judged on its merits


without anymore information than what you have given ....


try this site:

http://lawyers.com/

[rug]

4. That's an In Terrorem clause.

http://www.deathandtaxesblog.com/2006/12/seth_a_kaplan_o.html

http://www.bankrate.com/brm/news/pf/20061115_no_contest_clause_a1.asp

Check the rule in your state.

[LiberalHeart]

5. Yep, that's the term I was searching for ... thanks!

[Deep13]

6. Depends.

First, you need a real live lawyer to handle this, not just advice from DU. Wills and especially trusts are hyper-technical instruments that require expert preperation. Laws differ significantly among the states.

The provisions you mention are valid in many states, but offen are not effective if a contestant has probable cause for a challange to the will. Find out for sure.

[Crazy Dave]

12. Very true

It's one reason my lawyer suggests not using these do-it-yourself will kits or a "divorce-and-wills.com" to handle something that important. Have a local lawyer who has been around and has written and/or contested a few of them.

[Ha Ha Ha Oh Wow]

7. no good in florida

im fairly certain of that.

[In_The_Wind]

8. Hello Ha Ha Ha Oh Wow

to DU

[wildhorses]

10. hey joani--

:hug::hi: love that smilie:loveya:

[In_The_Wind]

13. hey wildhorses!

wish you were here :loveya:

[huskerlaw]

9. Depends on the state

Some allow holographic wills (or partial holographic wills)...some require notorization, some require witnesses.

Regardless, in my opinion, doing that would be stupid. Why? Because it opens up the will to dispute. Even if the disputing party doesn't win, it could drag the whole estate through needless probate and court-related hassle which could cost quite a bit of money, and delay probate for potentially YEARS.

Meanwhile, getting a lawyer to do your will and make it all legit is only going to cost a couple hundred dollars. Particularly if you already have a legal will and you're just making a change or two. Small cost. Huge security.

[no_hypocrisy]

11. To my knowledge, the only way to prevail against an ad terrorum

clause to have clear and convincing evidence of these situations:

1. The Will was not properly executed;
2. The Testator/Testatrix did not possess the necessary mental capacity to understand the document or that s/he was signing his/her Will; or
3. The Testator/Testatrix had his/her Will overcome by a third person who either compelled him/her to sign against his/her wishes or had such a confidential relationship with the Testator/Testatrix that the act was grounded in manipulation.

And you really better have lots of eyewitnesses and paper ready. If you have mere suspicions and you unsuccessfully challenge the validity of the Will, you get zip.

[LiberalHeart]

14. In this case....

It's a living trust made in 1997. Person creating it was definitely of sound mind then (and still is), it was put together by a lawyer and checked out by two lawyers since then, and there was no manipulation on the part of a third party -- so this sounds like it meets the test.

Situation: woman with two children leaves money to both, but quite a bit more to one than the other. She put the no-challenge wording into her trust in the hope it would discourage the kid who'll probably feel slighted from challenging it. It's not a matter of wanting to disinherit someone. She just wants to thank the one child for taking care of her for years, being part of her daily life, while the other lives elsewhere and seldom visits -- maybe once every 18-24 months (which is how it's been for decades). The other kid is completely devoted and puts her above all else out of love. But the mostly-absent kid detests the mostly-present one and has done many hurtful things to her. Thus the worry there'd be a challenge. The woman with the trust is quite elderly -- and not ill but thinking of death and the aftermath. She's wondering if she needs to do more to protect the mostly-present child.

The child destined to inherit the bulk of the estate is also concerned. She wondered if she'd *have* to deny the other child the inheritance if there's a challenge. She doesn't want to do that, but she's the successor trustee on the living trust and worries she has to do what it says. She thinks it puts her in a bad spot because she'd then be getting that part of the inheritance if she enforces it. It puts her in what she thinks is a conflict-of-interest role, but the mom won't change successor trustees to remove that conflict.

Families are complicated.