- posted: Oct. 20, 2024
- Estate Planning
A will is one of the most important estate planning tools. It allows individuals to ensure their assets are distributed according to their wishes after they pass away. Without a valid will, an estate is subject to distribution under state intestacy laws, which may not reflect the decedent’s preferences. However, a will must go through probate, where dissatisfied heirs and other parties might raise challenges to its validity. A will contest — known in West Virginia as “impeaching” a will — can disrupt and delay probate and can deplete estate resources. Through careful drafting and close observance of legal requirements, a will can be made that stands up to such challenges.
These are the most important positive steps for making a contest-proof will:
Establishing competence — West Virginia law requires that the testator (the person making the will) be of sound mind when the will was executed. Contests based on lack of mental capacity are often raised if the testator was very old and/or suffered from an injury to mental health, such as a stroke. It is prudent for the testator to have a physician evaluate their mental health and provide an affidavit that they are of sound mind.
Avoiding claims of undue influence — A challenger might claim that another person exerted improper pressure on the testator to make the will or to include certain provisions. The testator should take steps to demonstrate their independence in drafting the will. They should meet with their estate attorney alone, discussing the terms privately. They should not make any dispositions to the attorney or to other people involved with the will, such as witnesses.
Consistent and transparent dispositions — A will that leaves out certain family members may invite suspicion and challenges. The same is true of a replacement will that significantly deviates from previous versions. The testator should explain any major changes or unusual distributions to their family members ahead of time. This creates a record of the testator’s intentions which can serve as rebuttal evidence if a challenge is raised.
No-contest clauses — A will can include an "in terrorem" clause, also known as a no-contest clause, providing that a beneficiary forfeits any interest in the estate if they file a lawsuit to contest the will. West Virginia enforces these clauses except when a contest is brought in good faith and is based on probable cause of invalidity, such as fraud or undue influence. However, a no-contest clause can serve as a deterrent to potential challenges.
Proper execution of the will — West Virginia law requires that a will be signed by the testator and witnessed by two competent individuals who are not beneficiaries under the will. To ensure the will is properly executed, the testator should work with an experienced estate planning attorney. In some instances, an attorney might recommend making a video recording of the execution to serve as evidence in case the testator’s mental competence is questioned.
An experienced West Virginia wills and probate attorney ensures that the will complies with state laws and best practices and can advise on other strategies to protect the will from potential challenges.
Pullin, Fowler, Flanagan, Brown & Poe in Charleston drafts wills and provides probate representation for clients throughout West Virginia. To consult with a knowledgeable attorney, call 304-344-0100 or contact us online. We have offices in Charleston, Morgantown, Beckley and Martinsburg.
