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Estate planning

Estate Planning: Can family member bring a will challenge?

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Q: Can a family member contest a will if they are left out of it?

A: Yes, a family member can contest the validity of a will if they are left out of it.

As I'm sure you know, we are a litigious society. People will sue each other often and frequently for what seems like the smallest of reasons. That's just the nature of the beast.

However, what I will say is that will challenges are rare and successful will challenges are even rarer than that. I know that you see challenges to the will in old movies all of the time, but in reality, they really aren't that frequent — at least from my experience.

I can count on one hand the number of will challenges that I've been involved with in the nearly 26 years that I've been an attorney. They just don't occur as often as you might think and they certainly don't happen often enough that it should keep you up at night.

I'm also pretty sure that when a will challenge is brought, people are rarely surprised. Either the facts are pretty clear that something weird happened or the party bringing the challenge is someone that you expected to challenge it.

Fortunately, most attorneys plan for a challenge to the estate plan. They follow all of the formalities and take precautions that make a will challenge (or rather a successful will challenge) unlikely to succeed.

One of the newest additions to the quiver of estate planning techniques to defend against will challenges is the in terrorem clause. An in terrorem clause is a provision in a will that threatens some action if a beneficiary challenges the will or a provision in it. In other words, if you challenge the will, you take nothing.

Indiana didn't recognize in terrorem clauses until fairly recently. Now, you can add a provision to your will that will threaten anyone challenging your testamentary plan.

Honestly, I wouldn't let the thought of a will challenge bother you. They are so expensive and difficult to prove that you just don't see them very often.

If you have real concerns, discuss it with your attorney and let him or her take whatever additional precautions they feel are necessary to protect the plan. A will challenge can be planned for, if the attorney knows about your concerns.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to 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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