Do Witness Signatures Safeguard Against a Will Contest?
July 11, 2016
Can you insure against a will contest? No amount of proactive planning may constitute an absolute guarantee. At the same time, however, the odds of avoiding a challenge to a will are incredibly favorable.
By one estimate, around 99 percent of wills go through probate without such an incident. One reason for that high passage rate may be the procedures surrounding an executed will: State law generally requires a will to have two witnesses. For that reason, a presumption may arise that the document accurately reflects the grantor’s intent and that he or she had the capacity to reduce those intentions to writing.
What if a will contains some suspicious asset transfers? As a preliminary matter, the law imposes certain support requirements that cannot be avoided in estate planning, such as the care of minor children or a spouse being presumed to have some stake in the marital estate. Accordingly, an individual probably could not completely disinherit minor children or a spouse. For adult children and other non-spousal heirs, however, a court might be inclined to honor the grantor’s intentions.
A document by a similar name, called a living will, must also be signed in the presence of two witnesses under New York law. However, the purpose of this document is different. Rather than direct the disposition of assets, a living will provides instruction regarding the type of end-of-life medical care that an individual might accept or decline. To fill in any gaps not anticipated by the living will, an individual might also consider designating a health care proxy.
Source: Washington Post, “How to plan for a less rocky transfer of your home to your children in your will,” Ilyce Glink and Samuel J. Tamkin, June 13, 2016