I am afraid someone might challenge my will. How can I keep this from happening?
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If it is important to you that your will is challenge-proof, or close to it, you'll want to have a lawyer help you draft it. If you tell the lawyer you suspect challenges, they can take extra measures and follow some standard protocols to ensure the execution of your will is entirely challenge proof.
Some of the extra will protection measures lawyers can take include:
- Evaluating mental competence;
- Videotaping the execution of the will;
Evaluating Mental Competence
An attorney can ask a physician to evaluate your mental competence - and perhaps serve as a witness when you sign it. The primary requirement that families challenge is the competence of a person at the time the will was drafted. They may argue that you could not remember who your family was or perhaps you did not understand how much your assets were actually worth.
Having a physician evaluate your mental state ensures that this standard is entirely met and cannot be questioned. Along with the evaluation, a prudent attorney will ask the physician to draft a formal document detailing the evaluation and the results.
Additionally, the physician will participate as one of the witnesses who signs your will, as they are by far the most capable of stating that you are of a sound state of mind.
Videotaping the Execution of the Will
An attorney can videotape your execution of the will. While a picture is worth a thousand words, a video is priceless when it comes to proving a valid will execution. If any family members try to claim that the will was not properly executed, or worse, that it was executed under duress, a video will be the best evidence to prove otherwise.
Be sure to show the entire execution on the recording and make certain that everyone’s oaths are clearly heard. Finally, include a copy of the recording in the will document.
Provisions in the Will
An attorney can put in provisions that would result in a decrease in share (or getting nothing at all) for any challengers to the will, should the challenge fail. Sometimes money truly is the reason that people challenge an otherwise valid will. By removing the incentive to challenge the will, you may eliminate the troublemakers.
Will protection is important for anyone who wants to ensure a smooth transition of assets for their remaining family. If you feel that all of these provisions still are not enough to protect your will, consider consulting an estate planning attorney about creating a trust to keep your assets entirely out of probate.