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The loss of a loved one is a difficult time, made even harder by legal disputes over a will. To protect your legacy and ensure your wishes are carried out, it’s crucial to take proactive steps. No will is completely challenge-proof, but there are ways to minimize the avenues for challenges.
Here are five essential tips to help minimize the risk of family feuds, legal battles, and challenges to your will:
1. Know which family members might have a right to challenge your will
Does one of your family members rely on you for financial support, like a full-time student or because of a disability that prevents them from earning a livelihood? Do you have a spouse who has contributed to your wealth accumulation through their time and effort without payment?
There may be people in your life who have a claim to a portion of your estate, either because they are someone whom you are responsible to look after, or because they have enriched you and you have not compensated them for that enrichment. When considering the beneficiaries of your estate, be aware of any individuals who may have the right to make a claim for maintenance and support or unjust enrichment.
2. Distribute big-ticket items before you die
Items and money distributed while you are alive cease to be part of your estate. If you have a large estate and you expect challenges, distributing a large portion of your estate now may shut down potential challenges before they happen. Potential challengers will be less excited to fight over an estate worth $50,000 than one worth $50,000,000. Bonus: you get to see how everyone uses their gifts before you pass.
3. Provide reasons
Providing clear reasons in your will for your chosen distribution can deter challenges to your will. While legislation in Alberta requires the Court to interpret the will to reflect the wishes of the deceased, it may still be helpful to explain those intentions in the will itself. If you decide to cut out your eldest daughter, she will have a harder time challenging the validity of the will if your reasons — she absconded to Bermuda with half your fortune — are clearly articulated in the will.
Keep in mind that once probated, your will becomes public. For sensitive reasons, consider sharing them in a separate document which will accompany — but remain separate from — the will.
4. Get a capacity assessment by a well-respected professional
A common venue for challenging a will is the argument that the testator lacked capacity. Unless you are in peak physical condition, if you anticipate a challenge to your will, consider hiring a professional to assess your mental capacity. Depending on the size of your estate, the likelihood of a dispute, and the degree to which you could possibly lack capacity, it may be wise to have a full report written including an assessment of your medical records.
5. Disincentivize challenges to your will through contracts and no-contest clauses
If you are concerned a non-beneficiary of your Estate will try to challenge your Will, consider entering into a contractual agreement in which the non-beneficiary agrees not to challenge the will in exchange for some form of consideration. They may still choose to challenge your will after you pass but now have the added complication of being in breach of contract.
To deter potential challenges to your will, consider adding a “no-contest” clause. This clause can stipulate that a beneficiary who unsuccessfully contests the will forfeits their inheritance. While it won’t block legitimate challenges, it may discourage frivolous ones.
To learn more about when you might need an estate litigator, check out our other articles about navigating probate, wills, powers of attorney, personal directives, personal representatives, avoiding sibling disputes, and more. If you have any questions or concerns about your estate planning or litigation needs, reach out to our team at BD&P to learn more, or complete the form below and BD&P will be in touch.
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