The common law provides you testamentary freedom to dispose of your property as you see fit. Still, your testamentary freedom doesn’t exclude the possibility of a disgruntled relative contesting your last wishes. If you expect some family members to be dissatisfied with their inheritance, it’s best to take preemptive action and make the will as watertight as possible. Most importantly, because you want your last wishes to be carried out as you see fit, and secondly, you want to ensure all the heirs access their inheritance as soon as possible (will contests can last for years, preventing anyone from accessing the estate). If you live in San Diego area, feel free to book your free 30-minute consult with an experienced San Diego estate planning attorney to discuss your will and estate plans – call the Law Offices of Irina Sherbak at 858-208-8900.

Seek professional support

You can write a will on your own, without a San Diego estate planning attorney. Although you can, it does not mean that you should. Whereas a simple, handwritten will may be acceptable for small estates or straightforward situations, large estates and more complicated family contexts would benefit from professional and experienced legal support.

Seek the services of a reputed estate planning attorney to draft and execute your will.

Provide an explanation for the provisions of your will

It is advisable to make your wishes known while you can still provide an explanation for them. When relatives know how you wish your estate to be distributed (even if they don’t agree with it), they are less likely to contest it. If you don’t want to do this in person, you can always include a letter of wishes with the will, explicitly saying (preferably without spite or content) why you made the provisions you did.

Include a no-contest clause

A no-contest clause is also called an in terrorem clause. It’s intended to dissuade them from challenging your will. The way to take advantage of this clause is to leave something to the relative you suspect will be dissatisfied and include a no-contest clause. You leave the relative or friend something that they will find valuable, but maybe not as much as they expected. If they decide to challenge the will and lose the fight, they don’t get anything from your estate. That’s why it’s necessary to leave them something that they will perceive as more valuable than the risk.

Demonstrate testamentary capacity

One of the main grounds for challenging wills is arguing testamentary incapacity and undue influence. This can be countered by observing the golden rule of testamentary capacity, which advises having a physician examine you. Your attorney should also ask you a series of questions and take steps contained in the testamentary capacity checklist to reduce the likelihood of a will challenge.

Video yourself signing the will

You can make a video recording of yourself signing your last will and testament. This record will go to show that you signed the document of your own free will and that you had the mental capacity to make a will.

Prevent allegations of undue influence

Arguing undue influence is a common way of contesting a will. If your situation is such that you can imagine a relative making the “undue influence” argument, it would be a good idea to leave out all your relatives from the estate planning process. If you have a San Diego estate planning attorney by your side, it would be wise to visit him or her alone when drafting and signing the will. Ideally, you would drive there yourself or get a taxi.

Reach out to us for professional consultation and help!

The Law Offices of Irina Sherbak welcome you to book your no-cost 30-min case review. We have been serving San Diego communities for years with great success. Read about our client experiences and call us!