Sometimes family members feud.

Sometimes it’s irreparable (in the eyes of the participants…..I would always beg to differ, but that’s another story).

Sometimes thoughts of money and mortality will lead a person to take action.

So they make a will….with one main purpose… make sure that “X” doesn’t get anything.  Sometimes there are related purposes, to make sure that “X” gets the message, or knows what (s)he missed out on, but the theme is often the same…….”X” gets nothing.

I’ve done a lot of wills like this. In these situations, you want to minimize the possibility of a will contest in the future. Sometimes the will-maker’s main problem with “X” is “he’s the kind of person who would contest a will”. The solution is something called an “in terrorem clause”.  Sounds pretty cool…’s how it works. You leave “X” enough of a bequest to make it interesting, and add a clause that says effectively “If after my death “X” takes ANY steps to contest this will, he will get ZERO”. People who are so inclined generally love this suggestion, but some real thought has to go into it. To make it effective, you actually have to leave “X” something in the Will.  Clients invariably say “So leave him $10″….but that’s not the way to do it, because “X” would have nothing to lose. A better approach would be to leave “X” a bequest of say, $10,000 or $25,000, in a million dollar estate, and let him have to deal with it.

Sometimes people don’t want to do an in terrorem clause, they simply want to leave “X” nothing, and minimize “X”‘s chances in a will contest.  If someone is being left out, I always suggest that the Will specifically refer to them. It can be as simple as “I intentionally make no provision in this Will for “X”, and this is not due to an oversight”. Some people go further and say something more…..”I leave “X” nothing because he…..whatever.” Another phrase clients have requested, more than once, is “I leave nothing to “X”, for reasons which are well known to him.” I didn’t like it, but the clients wanted it and I did it. I always wondered if “X” really knew the reasons.

If there are potential issues regarding the will-makers competency, additional practical steps must also be taken to ensure the Will will stand. These would include using the best witnesses possible, keeping the language of the will as clear as possible, keeping detailed notes, and making sure it is documented that the attorney/draftsman met with the will-maker ALONE.

There are legal provisions for video-taping a Will, but for many reasons I have never done it. Imagine having the “out-takes” being subject to discovery in a will contest?

Why all the fuss about possible will contests? Consider this…..attorneys can (and frequently do) take will contests on a contingency fee.  I have done this, IF I think I have a good shot at knocking the Will out.  There are often high stakes, where the will beneficiaries may get nothing (or much less) if the Will gets tossed.  Guess which ones I pass on?  The one’s where good steps were taken to thwart a contest.

With this in mind, and if the possibility of a will contest is being considered during the will drafting process, steps can and should be taken to protect the Testator’s wishes.