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How to Avoid a Will Contest

By:  Jeffrey Skatoff, Esq.

How to avoid a will contest is a common question asked by both testators and beneficiaries. 

How To Avoid a Will Contest As the Testator

From the perspective of the testator, the best way to avoid a will contest is to not involve any of the beneficiaries of the will in the preparation of the will. 

Based on the Florida case law regarding undue influence, the following the basic steps for how to avoid a will contest are:

  • Do not take the recommendation of a beneficiary for the selection of the drafting attorney.
  • Do not allow a beneficiary to meet with the drafting attorney, or to discuss the estate plan with the drafting attorney.
  • When you meet with the estate planning lawyer, do not take any beneficiary with you to the meeting.
  • When you execute the estate planning documents, do not take any of the beneficiaries with you.
  • After execution of the estate plan, do not give any of the beneficiaries the original of the will, or for that matter a copy of the will. 
  • If you intend to disinherit children or to leave children radically different amounts of inheritances, give your reasons to the estate planning attorney in detail, and insist that your reasons be kept with the estate planning file.  You can even make your own note and ask that it be included with your file and released to the beneficiaries upon your passing.

How To Avoid A Will Contest as a Beneficiary

From the perspective of a beneficiary, if you believe that the testator is going to bequeath you an inheritance and that other family members would be upset by such inheritance, the following steps should be taken to avoid a will contest.

  • Do not make the recommendation as to who should be the estate planning attorney.  Certainly do not take mother to your own estate planning attorney.
  • Do not accompany the testator to the estate planning attorney’s office.  If the testator can’t drive, have the testator take a cab.  If you absolutely must drive the testator, wait in the car.  
  • Under no circumstance should you be present in a meeting with the testator and the estate planning attorney.  Your presence at such a meeting will be the strongest piece of evidence used against you. 
  • Do not be present when the estate planning documents are signed.  Your presence at the execution will be a strong fact used against you in a will contest proceeding. 

Do These Guidelines Matter In Every Case?

These recommendations for how to avoid a will contest are more or less important depending on how far the estate plan departs from previous estate planning documents or from the laws of intestacy. 

If mother is going to leave her estate to all three of her children in equal shares, there would likely be no reason for a will contest – so these guidelines are less important. 

If mother is going to leave her entire estate to one of her children and disinherit the other two, these guidelines become critically important in winning a will contest lawsuit.

Ultimately, you are not going to be able to avoid a will contest if there is a determined and disgruntled heir who wants a fight.  However, following these basic guidelines will put you in a better position to win any will contest that is pursued.  For tips on how to win a will contest in Florida, click here.

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

Jeffrey Skatoff Esq

Jeffrey H. Skatoff, Esq.

Probate, Trust & Guardianship Litigation

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(561) 842-4868

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