This post is the seventh in a series of posts that suggest possible methods to help ensure that one’s estate plan will be carried out as intended.
As is discussed in the blog on this site entitled “Will Contests in Utah,” a will contest (or a contest of a revocable trust) can be brought either on the grounds that the decedent lacked testamentary capacity (i.e. the necessary mental capacity) at the time he or she signed the estate plan, or on the grounds that the estate plan was the product of undue influence exercised by the alleged perpetrator.
So if you have testamentary capacity and are not subject to undue influence, is there anything you can do while you are still alive to protect your estate plan from such allegations and from an attempted contest after death? Yes, to a degree. The following are some possibilities:
Meet with Your attorney alone. If your estate plan is contested on the grounds that it is the product of undue influence, one damaging fact could be that the alleged perpetrator attended all of your meetings with your estate planning attorney. It is very helpful if your attorney can testify that she met with you alone and assured herself that the estate plan truly reflected your wishes. If you plan to leave more of your estate to one of your children than to the other children, that child should not attend your estate planning meetings with your attorney.
Cognitive Evaluation. One of the most effective methods to protect against a successful will contest (and for discouraging even an attempted contest) is to be examined by a physician (or even a geriatric psychologist) immediately (i.e. less than an hour or so) before you sign your estate planning documents, and to have the physician sign a certificate stating that you have testamentary capacity. But be careful. The plan can backfire if you are having a bad day and fail the examination, causing the signing ceremony to be postponed. It can be very damaging if that fact later comes out in discovery in litigation.
Videotape. Another potentially effective way to guard against a will contest is to videotape the signing ceremony and answer questions on tape about your estate plan in order to show that you are mentally competent and are not under the influence of another person. Like a cognitive evaluation, however, this technique can backfire if you are having a bad day. In addition, a videotape can also backfire if you do not come across well on camera.
Attorney’s Memo to File. If there is any substantial reason to suspect that a client’s mental capacity will be brought into question, it may be advisable for the attorney to prepare a memo for her file explaining why she is confident that the client had testamentary capacity. It may also be prudent for the attorney to have the memo notarized and to email it to herself to show that she did not prepare it after the fact.
Explanation of the Estate Plan. Many people are tempted to explain in their estate plan, or in a separate letter, why they disinherited a particular child. But such an explanation can be a two-edged sword that cuts both ways. If the explanation is factually accurate and well-reasoned, it can help thwart an attempted contest. But if the explanation contains any factual inaccuracies, it can be used to demonstrate diminished capacity.
No Contest Clauses. A no contest clause is a provision in a will or revocable trust that attempts to disinherit any beneficiary who challenges the validity of the will or trust. No contest clauses are included in estate plans, of course, to discourage any would-be contestant. However, no contest clauses are of limited usefulness for two reasons. First, in Utah a no contest clause is unenforceable unless the contest lacks probable cause (i.e. unless it is frivolous). Second, if you are disinheriting someone, then by definition you do not want that person to receive anything. But in order for a no contest clause to be effective against a dissatisfied beneficiary, that beneficiary must be given a large enough bequest to incentivize him not to bring a contest. If you do not give that person a sufficient “incentive bequest,” he will have no incentive not to contest the estate plan, notwithstanding the no contest clause.
Other Trust Provisions. Utah Code §75-7-607 provides that a contest of a revocable trust must be brought within 90 days after the contestant receives notice from the trustee informing him of that 90-day deadline. The trustee is not required to send this notice, and trustees often neglect to do so. If no notice is sent, the 90-day period never starts to run. It may be prudent, therefore, to include a provision in the revocable trust prohibiting any distribution to any beneficiary until 90 days have elapsed since such notice was sent. Of course, §75-7-607 covers only contests. In some families, there may be a concern about a beneficiary bringing a lawsuit (other than a contest) against a trustee or other beneficiary. If that is your situation, you may want to include a provision in the estate plan that requires a beneficiary to agree not to bring a lawsuit against a trustee or other beneficiary as a precondition to receiving his or her distribution from the trust. However there is no Utah law addressing whether or not such a provision would be enforceable.
Update Your Estate Plan Periodically. If your will or revocable trust is successfully contested, that will or revocable trust will be invalid. If you had a prior estate plan, that prior plan will then govern the disposition of your estate. If that plan is substantially similar to the plan that was contested, the contestant will have accomplished very little, unless he can also successfully contest that prior plan. You can thus protect your estate plan by putting any potential contestant in a position where he would need to successfully contest a series of estate plans that were put in place over the years.
Use an Attorney. It is almost never a good idea to prepare your own estate plan. If you do, you will almost certainly make a mistake – probably several mistakes. Even if litigation doesn’t result, your property will likely not be distributed in the manner you intend.
For a more detailed discussion of estate planning in Utah, see Basic Utah Estate Planning on this website.
Rust Tippett is the author of this blog post.
Copyright 2014 UNLEPI, LLC, a Utah limited liability company. All Rights Reserved.
This blog post in no way creates an attorney-client relationship between the reader and either Robert S. (Rust) Tippett or Bennett Tueller Johnson & Deere, LLC. The reader should consult with his or her own estate planning attorney regarding his or her particular circumstances.