Although most trusts and wills contain a “no contest clause,” disgruntled persons, especially one’s children, who feel they were improperly left out of a decedent’s disposition of property, may still vigorously challenge the provisions of the decedent’s document(s) in question following the deceased person’s death. The grounds for such a challenge can be: (1) alleged fraud or undue influence exacted by the taker under the trust or will; (2) purported lack of mental capacity of the trustor or testator resulting in the estate going to the “wrong beneficiary”; or (3) especially in the instance of children, when a child believes he or she was inadvertently left out (“forgotten”) of the trust or will. Such challenges can slow up the administration of the trust or estate, cause anxiety, and be very costly to all parties involved.
To help avoid such a future challenge, when a trustor of a trust or the testator of a will believes there may be future discontent among his or her children, he or she should strongly consider having a before-the-fact meeting with the children and advise them of his or her intentions regarding the future disposition of the trust and/or estate. While such a meeting may be uncomfortable, in the long run it could be beneficial, since it may well allow the trustor or testator to die in peace, knowing that there should be no challenge to his or her estate planning disposition, with its attendant delays, costs, and anxieties. Further, such a meeting may provide for a reconciliation of those presently estranged children. Another idea which may be helpful is making a videotape of the trustor’s or testator’s signing of the trust or will along with such trustor or testator making a statement of why he or she is making the disposition in question.
The above statements are not to be taken as legal advice for the reader’s particular situation. Richard F. McEntyre practices law in the area of estate planning and administration, having served the San Diego community as a lawyer for over 40 years. Chris von der Lieth is Dick’s associate lawyer, having worked with Dick for over 6 years. Affordable rates. Highest quality services. House calls available. Our office is conveniently located at 2615 Camino Del Rio South, Suite 101 (in Mission Valley just east of Bully’s restaurant) (Telephone (619) 221-0279) www.richardfmcentyre.com.