I recently heard an attorney from a prominent estate planning firm say that one of the real tragedies of working with estates and inheritances is the large number of cases where children will litigate over what their parents left them.
Lawsuits can take the form of a contest of a will, where a disgruntled family member will attempt to show in probate court that a will is invalid. In Utah, a family member can contest the validity of a will by filing a contest action within the later of 12 months from the informal probate or three years from the decedent’s death. An informal probate is a probate action that takes place without a court hearing.
A contest of a will can be based on the will not having been signed as required by Utah law, which requires at least two witnesses to the signing or the acknowledgment or notarization of the signature. A “holographic will” is a will written in the decedent’s handwriting, and which is valid with only the decedent’s signature.
Another ground of a contest is that the decedent lacked the necessary capacity, or the ability to understand the will he or she is making. A third ground is whether the signer of the will was coerced or unduly influenced into signing it, or if the will was procured by fraud or misrepresentation.
Lawsuits can also take place to contest the meaning of a provision of a will or a trust or any ambiguity which may materially affect a child.
Litigation contests among children over their parent’s estate can cost a very large portion of an estate. Indeed the greatest tragedy, however, is the extremely ill feeling among children which parents never intended when they left an inheritance for their children.
The most important way to avoid such an event which is very costly in both money and bitter feelings is to have testamentary documents clearly defined. An Irrevocable Living Trust, together with other important documents can be drafted to set forth in detail that which parents really intended, so as to bring the likelihood of legal contests to a minimum.
It can be a real risk for a couple to draft testamentary documents on their own. Feel free to contact our office for a free evaluation of your needs in this important area.