Over the past couple of years, as the recession has taken hold, we have experienced a higher level of controversy in estate settlement matters, including more will contests than usual and more than the average amount of trust litigation.  Certainly, the economy has been a factor.  With will contests and trust challenges though, more often than not, it is the emotions surrounding the death of a loved one, and family dynamics, that more often lead families into the courthouse over the interpretation of a will passage, or the meaning of a trust clause.

Emotions can run high at the death of a family member. If a family member is unhappy with the amount they received (or didn't receive) under a will or trust, he or she may contest the will or trust. Will contests can drag out for years, keeping all the heirs from getting what they are entitled to under the provisions of the will or trust. We've recently concluded a probate matter that has been open for more than six years.  While it may be practically impossible to prevent relatives from fighting over your estate entirely, but there are steps you can take to try to minimize the opportunities for disagreement and to ensure your intentions are carried out.

There are numerous grounds upon which your will can be contested.  Probably the most common is if a family member believes you did not have the requisite mental capacity to execute the will. Another common basis for challenging a will or trust is a claim that someone exerted undue influence over you.  Occasionally, there are claims that someone committed fraud, or the will or trust documents were not signed properly. For more information about will contests and trust challenges, refer to our additional discussion of probate litigation and trust litigation found at our website.

The following steps can be taken to reduce the likelihood that a will contest is likely to succeed:

• Make sure your will or trust is properly executed. The best way to do this is to have an experienced elder law or estate planning attorney assist you in drafting and executing the will. Wills need to be signed and witnessed, usually by two independent witnesses.  Without a self-proof affidavit, in Florida, it is necessary to locate and obtain an affidavit from one of the witnesses.  That can be quite difficult if the will or trust was signed in another state several years before the death.  If a witness to the will cannot be located so the appropriate affidavit can be obtained, the will is deemed to be invalid, and your estate probably will be subjected to Florida's intestacy laws.  For more information on the formalities for signing a will or trust, see our website.
• Explain your decision. If family members understand the reasoning behind the decisions in your will, they may be less likely to contest the will. It is a good idea to talk to family members at the time you draft the will and explain why someone is getting left out of the will or getting a reduced share. If you don't discuss it in person, state the reason in the will, or leave a private letter for the persons who will be impacted by your decisions.  This is especially true if you are making a distribution that is different that what would be "normal" given your family circumstances.
• No-contest clause. In many states, one of the most effective ways of preventing a challenge to a will or trust is to include a "no-contest" clause (or "in terrorem" clause) in the will or trust. This will only work if you are willing to leave something of value to the potentially disgruntled family member. A no-contest clause provides that if an heir challenges the will and loses, then he or she will get nothing. You must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.  Florida law does not recognize no-contest clauses.  Though you may prevail upon your elder law or estate planning attorney to include such a clause in your will or trust, it will not be enforced by the Florida probate courts.
• Prove competency. One common way of challenging a will or trust is to argue the deceased family member was not legally competent at the time he or she signed the will. You can try to avoid this by having the attorney drafting the will test you for competency. This could involve being examined by a psychiatrist or as simple as answering a series of questions.  In Florida, a person may be legally competent to sign testamentary documents, but may still suffer from dementia, or other signs of incompetence, if the will or trust is signed during a "lucid moment." Obviously, if such a lucid moment is necessary, it should be well documented.  
• Videotape the will signing. A videotape of the will signing allows your family members and the court to see that you are freely signing the will and makes it more difficult to argue that you did not have the requisite mental capacity to agree to the will.  Several years ago, we were able to avoid a will challenge because we videotaped the meeting where the will maker signed the will, and through the course of the videotaping and the discussion surrounding the signing of the documents, it was completely clear that the will maker was fully aware of who his natural heirs were, what his objectives were, and that he knew exactly what he was doing.
• Remove the appearance of undue influence. Another common method of challenging a will is to argue someone exerted undue influence over the deceased family member. Even though undue influence is very difficult to prove in Florida probate courts, it still is a good idea to take appropriate action to avoid even the appearance of undue influence.  For example, if you are planning to leave everything to your daughter, who is also your primary caregiver, your other children may argue your caretaker daughter took advantage of her position to influence you. To avoid the appearance of undue influence, you should not involve any family members who are inheriting under your will or trust in the drafting of your will or trust. Family members should not be present when you discuss the will or trust with your attorney or when you sign it. To be totally safe, family members shouldn't even drive you to the attorney.
• Actually disinherit family members who are to receive nothing.  Under Florida law, a beneficiary of a will or trust who receives only one dollar is nonetheless a beneficiary of the estate. As a beneficiary that person is entitled to notice of all the activity taking place within the estate, as well as access to accountings and financial information.  To avoid giving those persons you want to disinherit the rights to such information, you should specifically disinherit those individuals, and not leave them a dollar, or anything else.  A simple statement that you are disinheriting the family member or other heir, "for your own reasons" is sufficient.  If you want to detail the reasons, you have that right, but it is not necessary.  By specifically disinheriting the family member, you may limit some of their access to information, and reduce the likelihood of a will contest or trust challenge.
• Choose appropriate fiduciaries.  Exercise care in choosing fiduciaries (estate personal representatives, executors or trustees) for your estate or trust administration.  Putting one child "in charge" of the other child's inheritance, is almost a sure prescription for trouble between the siblings, especially if there has been sibling rivalry in the past.  Having the children acting as co-fiduciaries could also result in the undoing of your planning, particularly if you have provided for protective trusts for children or grandchildren.  The co-fiduciary children are likely to decide that "I'll give you all of yours if you'll give me all of mine."  Also, be leery of appointing as executors or trustees those who may have a hidden agenda for your beneficiaries.  We recently were retained to and did accomplish the removal a long time family friend and advisor as the fiduciary in an estate, at significant cost to the estate, where his actions toward the beneficiary were anything but beneficial.
• Treat Florida Homestead Properly.  Florida, and just a small handful of other states, have some very special rules with regard to the disposition of your homestead if you have a surviving spouse, or surviving minor children.  Be sure that proper consideration is given to the disposition of the Florida homestead property so that there is no basis for challenging the will or trust for a violation of Florida's homestead provisions.
• Florida's Elective Share.  Florida has a statute that precludes one from totally disinheriting a spouse.  It allows for the surviving spouse to "elect" against the provisions of the will or trust, and choose to take a stated percentage of the deceased spouse's estate regardless of what is provided in the will or trust.  The elective share is taken from the "augmented" elective share estate - which often is more than the probate estate.  If not properly provided for in the will or trust, the surviving spouse's challenge could upset other aspects of one's estate plan.  Provisions for the surviving spouse's elective share should be included to avoid a challenge on that basis.