Relationships and money are complicated and important subjects. When you combine the two, the potential for controversy looms large. One major area this occurs is in estate planning.
Don’t assume that your estate is too small for anyone to bother fighting over. You may not be Elon Musk, but the sting of being left out of any estate can lead to resentment and litigation. Also keep in mind that leaving a person a token amount of money (such as a dollar) doesn’t prevent litigation.
Whether you want to leave someone out of your will entirely or simply leave one person more assets than another, you should plan carefully in order to minimize the risks associated with your decision.
A – Restrictions on Wills
1 – Spousal Elective Share
Like it or not, disinheriting your spouse is much more difficult than leaving a child or a friend out of the will. States often have what is called ‘elective share statutes’, which allow a spouse to claim a certain portion of the inheritance – even when they are left out of the will. In most states, surviving spouses are entitled to one-third of the decedent’s probate estate.
This restriction can be circumvented with a prenuptial or post-marital agreement in which your spouse agreed to receive some limited amount of assets upon divorce or your death. Be aware, however, that this is not foolproof. Your spouse can challenge the agreement for various reasons, including failing to disclose all assets or coercing them into signing it.
2 – Disinheriting Children
Disinheriting children may be the right thing to do, but we strongly consider that you think through your decision beforehand. The impacts of disinheritance are far reaching, as relationships between siblings are often broken over probate disputes. However, you are generally allowed to disinherit your children – if they are over eighteen. Children under eighteen cannot be disinherited since they are minors.
B – Challenges to Wills
In order to challenge a will, one must have a cause of action, a theory as to why the will should be invalidated. Several of the main reasons wills are contested include undue influence, lack of testamentary capacity, and improper execution.
3. Undue Influence
Undue influence occurs when a testator’s intent is subjugated to that of another person. These claims are most common when the inheritance is left to someone that is not a natural heir. The theory is that the beneficiary exerted a special pressure on the deceased person to gain part or all of the will.
Undue influence can be achieved by threatening to reveal a negative fact about the testator, or even to physically harm the testator. You don’t have to prove that the testator was mentally impaired to win an undue influence claim, though diminished capacity is a factor in undue influence. One merely has to show that the testator would have made a different disposition of property than what was done, and that the pressure or influence directly led the testator to sign the will or trust. Medical or psychological records supported by testimony from witnesses is essential to prove undue influence as well as expert medical testimony regarding the testator’s state of mind.
4. Lack of Capacity
This is a harder cause of action. When suing for lack of testamentary capacity, one must show that the person was incapable of comprehending their actions when the will was drafted and signed. Courts presume a testator was of sound mind when the will was signed, and it takes substantial evidence to overcome this presumption. It’s a high bar to clear, especially if the will was signed years ago, and typically requires medical records from the time the will was signed. Occasional instances of unreasonable or illogical behavior or testimony regarding peculiar idiosyncrasies are rarely sufficient, especially if the testator had moments of lucidity. If the will was signed in an attorney’s office, it may be more difficult to prove lack of capacity since attorneys are usually careful to note evidence of the testator’s state of mind.
5. Improper Execution
Another reason a will can be invalidated is due to procedural errors. In South Carolina, a person must be a sound mind and cannot be a minor. The will has to be signed either by the testator or by a person of their choosing in their presence. Two witness also must sign the will, and the witnesses must have either watched the testator’s signature or acknowledgement of the will. It is best practice to have the will notarized and to try and have two ‘uninterested’ witnesses. Willio provides instructions on the steps to properly execute the Will and these instructions must be followed strictly to make sure the Will is executed properly.