Q: Is there anything that you can do to prevent a will challenge? Should you leave someone that you are cutting out of the will a dollar so that they can't challenge the will? Can you say that if they challenge the will, they get nothing?

A: I'm not sure why people worry about will challenges. It has been my experience that will challenges are pretty rare, and successful will challenges are even more rare than that.

I've seen a handful of will challenges in the more than 20 years that I've been doing this. Of those, I think one was successful and the facts were pretty clear that something bad happened during the will-making process. Arguments were made by both sides, but I doubt that the outcome shocked anyone except for the parties that lost.

I remember a long time ago, an attorney told me about a case that he was involved with where a testator used a razor blade to cut out the names of people that he wanted to exclude. I think it was referred to as the Swiss cheese will. I can't remember the exact outcome, but I believe that all of the names that were cut out were put back in. That was kind of a weird one.

If you have concerns about a will challenge, the first thing that you should do is talk to the attorney. Let the attorney know your concerns and let them plan around them. Remember that it's easier to avoid a problem than to solve it later. The more information that you offer, the more likely that the problem can be avoided.

If you are favoring the child that has taken care of you for many years and you worry that the other children won't like that, talk about your concerns. The attorney may ask you to get a note from your doctor stating that in their medical opinion, you are of sound mind and have the capacity to make your own decisions. The attorney may record the will signing so that there is evidence that you weren't persuaded or pressured to sign. The attorney may insist that the care giving child is not at the signing so that undue influence is less of a concern.

Leaving someone that you intend to disinherit $1 won't do anything except cost the estate a buck. Just because you left them a $1 doesn't mean they can't challenge the will. Also, putting a provision in the will that says anyone who challenges the will is disinherited, isn't a solution. That sort of provision is known as an in terrorem clause and Indiana won't enforce them.  

The moral of the story is to talk to the attorney and plan for the challenge. Chances are it will never come up, but if it does, your loved ones will be ready for it.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at www.nwi.com. Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chrisyugolaw@gmail.com. Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.

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