Listen to this post

Most trusts and estates litigators don’t start out specializing in this niche, they evolve into it. They either start out as pure estate/tax planners (like me) and morph into T&E litigation, or they start out as pure commercial civil litigators and morph into just doing T&E litigation. How you come to the practice obviously influences how you work a case and counsel your clients. What I’ve noticed is that T&E litigators who come to this niche from a non-litigation estate planning perspective, tend to view each case as an abject lesson in “what not to do” as an estate planner. That’s certainly my perspective, which is why litigation-prevention is a recurring them on this blog and a topic I ask about in every interview I’ve done for this blog [click here].

So it’s not surprising I found a recent article by law professor Gerry W. Beyer especially interesting and worth holding onto for future reference. Prof. Beyer’s article is entitled Will Contests–Prediction and Prevention, and was published in the Estate Planning & Community Property Law Journal, Vol. 4, p. 1, 2011. It does a good job of identifying likely estate planning landmines and proposing reasonable planning solutions to mitigate the risk and/or costs of related litigation. Here is the abstract of Prof. Beyer’s article as posted here on SSRN:

An estate planner must always be on guard when drafting instruments that may supply incentive for someone to contest a will. Anytime an individual would take more through intestacy or under a prior will, the potential for a will contest exists, especially if the estate is large. Although will contests are relatively rare, the prudent attorney must recognize situations that are likely to inspire a will contest and take steps during the drafting stage to reduce the probability of a will contest action and the chances of its success.

This article examines the situations which provide an enhanced likelihood of a will contest and then details the techniques a prudent attorney should consider. An important caveat is in order. Although this article discusses a wide range of strategies that may be helpful in preventing will contests, these techniques vary widely in both cost and predictability of results. There is no uniform approach to use for all clients. Each situation needs to be carefully examined on its own merits before deciding which, if any, of the techniques should be used.