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Tuesday, March 3, 2020

If wills can be challenged, what's the point in having one?

Recently a reader wrote to me to ask a question and she asked that I answer it for everyone to see. I decided to take her up on it. If you've ever wondered whether it's worth it to make a will, read on. Here is her question and my response:

"If our final wishes in our Wills can be challenged, then decided upon and rewritten by challengers of the estate, lawyers and judges it raises the question, What is the point of a Will in the first place?"

First of all, let's keep perspective on this. Every single day in this country, hundreds of wills go through the probate courts without challenges. When you surround yourself with horror stories about estates (as you do if you read enough of my blog!) it may make you feel that absolutely everyone is fighting over a will. That simply isn't the case. Yes, challenges are sometimes made to wills but they are a tiny minority when compared to the number of wills that are submitted successfully to the courts without fuss or impediment.

I'd also remind you that a will cannot be challenged by just anyone for just any reason. There are rules about who can contest a will. When people bring frivolous, malicious, or idiotic challenges to wills, most of the time they are shut down and are dinged with having to pay the legal costs for the other side. I am the first to admit that every now and then a judge makes a ruling that I don't understand from a legal perspective, but that is really rare. Judges can usually spot the trouble-makers.

Finally, the word you use - "rewritten" - is unfortunate because courts try very hard not to re-write anyone's will. Even when wills get to the point where a judge has to interpret them, the judge does everything possible to figure out what the testator intended, and to uphold that intent. This is one of the very basic, fundamental underpinnings of estate litigation.

Now, I know this will be an unpopular statement before I even say it, but a lot of estate challenges could have been prevented by the testator if he or she hadn't been too cheap to pay for a decent will. Today alone I saw two home-made wills that are invalid because people decided they didn't want to pay a lawyer. At least one of these cases is definitely headed for court. The other may be resolved but it will still take thousands of dollars in legal fees.

In both cases, these wills were made by people who were bright enough, had good jobs, had a good bit of money in the bank, and had children. They were not stupid people by any means, but they just did not realize how little they understand about inheritance law. They honestly thought their two-paragraph notes would do the trick. And they're not alone, are they? I expect that a lot of people reading this post have home-made wills and a misguided sense of having taken care of business. They'll never know that their refusal to pay a few hundred dollars for a will has left their families spending thousands to sort it all out.

Ask yourself whether you honestly think you can write a will as well as someone who has studied and worked in the estate-planning industry for 30 years. If you think you can, you are wrong, of course, but you are also a prime candidate to have your home-made efforts blown apart by your own mistakes.

If you don't want your will to be challenged, your safest bet is to find a lawyer that actually knows wills and estates law and who takes the time to talk through your family dynamics, your goals, your assets, and your family secrets with you. About a week ago, I sat down with a couple to talk about their wills. As usual, the discussion took an hour. They said they were amazed at the depth of the discussion because their previous lawyer had just sent them a questionnaire and had prepared the will from that questionnaire. It is really unfortunate that some lawyers still practice that way, which in my view is really negligent. My advice to you - to all readers - is to run away quickly from any wills lawyer who does not take the time to find out all about you and your plans and your family. And the weird thing is that lawyers who are thorough and careful usually don't even cost more than the lazy ones. Caveat emptor, as they say.

I know that some people don't have funds lying around for a will. Some people would have to forego groceries or gas to pay for one. This is why I and many other lawyers across the country participate in projects like the Cancer Society's Free Wills Month. Each year that we've been involved, we've prepared between 35 and 50 free wills for people who can't afford them.

So, what is the point in having a will in the first place? The point is to ensure that the person of your choice is left in charge of your children, your home, and your life savings. The point is to make provision for the people you care about and to give them directions on how to make the most of what you have left behind. The point is to find out how the law applies to you and make sure you make that work for you. And finally, the point is to give yourself peace of mind that when your time comes, you have done all that you can for those you've left behind.

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