Sentimental assets and your will or trust: when can someone challenge your wishes?

Challenge a will or trust concept: two businessman pulling a rope in opposite directionsMany people believe that a simple statement in their will or trust such as, “tangible personal property should be divided as my heirs see fit” is enough to ensure their assets are properly or equitably dispersed after they pass. However, vague statements such as this can often lead to a host of potential conflicts.

The thing is, emotions run high after a loved one passes away. All too often we see families fight over items of sentimental value that weren’t specifically given to an heir at the deceased family member’s request.

A better approach is to take them time to talk with your family before your passing. Understand what items mean the most to them and then put specific items that you believe are of interest to each of them in writing. This process usually helps avoid many emotionally charged disputes because everyone is clear and on the same page.

When a Challenge to Your Will or Trust is Inevitable

No matter what you do to prepare, sometimes a dispute is inevitable. But the good news is that, generally speaking, challenging your will or trust won’t be easy. And that’s especially true if your will or trust is a valid document in place that was drafted by an experienced attorney, signed by you, and duly executed according to your state’s law.

Challenging a will or trust must be done in a formal process. These court proceedings are most common in cases where more than one document exists and the beneficiaries disagree as to which is the “true will or trust.” Contests can also arise when there are holographic (i.e. handwritten) wills, confusing written statements, uncertain verbal statements, surprising or grossly unfair provisions, apparent deathbed revisions, or questions about the circumstances under which a will or trust was made.

As a general rule, if your beneficiaries wish to start this process, they must successfully allege one of the following claims such as:

  • Lack of Testamentary Capacity — The testator (i.e. the deceased) was not of sound mind when the will or trust was made, did not know the value of their estate, or otherwise did not understand the consequences and effects of the will or trust.
  • Invalid Execution — The will or trust was not executed according to the laws of your state. This argument is raised when there are questions about the capacity and/or signatures of either the testator or the witnesses. The court will typically presume that the will was properly executed, so the person challenging the will or trust must overcome that presumption, usually with the help of their attorney.
  • Undue Influence — The challenger claims you were coerced, wrongfully pressured, or subjected to duress when making the will or trust.
  • Fraud — The will or trust is fraudulent or a forgery. Challengers may also argue that your intentions were colored by fraud. For example, let’s say you disinherit your nephew because your niece falsely accuses him of stealing your money.

Contact a Los Angeles Estate Planning Attorney

If you have questions about how you can start protecting sentimental assets or how to protect your will or trust from a challenge, our office is here to help. An experienced attorney from LA Elder Law is happy to speak with you about your unique situation and advise you on the options that are best for you and your loved one. You can contact us directly by calling 310-823-3943 to schedule a free consultation about your unique needs. We look forward to working with you.