In one day, I received three calls for estate litigation and it made me wonder; is estate litigation on the rise, and if so, why?
- As the population ages, more people are passing away. These people consist of baby boomers, the largest generational group in U.S. history (until millennials).The oldest baby boomers, born in 1946, turn 75 this year, four years shy of the average life expectancy in the U.S.
- With more people dying, there are more potential estates and trusts, and more potential litigation.
- This segment of society has more wealth and is passing down more inheritance than any other generation, thus spawning more battles over assets and inheritances.
- Laws relating to trusts and estates are always changing and evolving, opening up new areas of dispute.
- No-contest or in terrorem clauses are provisions in wills that penalize an interested person for contesting the will, whereby they forfeit any gift they are given if they challenge the will. These clauses are unenforceable in both PA and NJ if probable cause exists for instituting proceedings. This means one can challenge a Will if s/he has probable cause to do so. These clauses on their own account for litigation.
What does estate litigation look like? The range of issues are varied, but usually include;
- Mental capacity. Was the testator (will writer) capable of making sound decisions at the time the will was written?
- Undue influence. When the will was written, was the testator being manipulated by another for that person’s gain?
- Was the testator threatened to include or exclude something or someone?
- Improper drafting. Was the will properly witnessed according to the law of the state? Is it clear from the language of the will what the testator’s intentions were?
How do you avoid litigation over your estate? While there is no guaranty that you will avoid litigation after you are gone, you can certainly reduce the chance of that happening with a well drafted document written by an attorney who takes adequate time to discuss all options with you.