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Making a will that can withstand a challenge

A will is part of a simple and effective estate plan designed to ensure the well-being of one's family. A will is supposed to represent the last wishes of the deceased, known as the testator, and Washington courts don't want to have second-guess what the testator meant. As long as the will was executed with all the requirements and formalities, the court will likely approve it. About 99 percent of wills go through probate without any significant legal hurdles.

However, there are cases in which someone challenges a will. This legal action is called a will contest, and it can be put forward by anyone with an interest in the outcome.

For example, when a daughter expected to inherit at least half her mother's estate, but finds out after her mother's death that a suspicious-looking will leaves everything to her mother's nurse, the daughter may contest the will. In this case, the daughter might argue that the will is invalid because the nurse exerted undue influence over the testator. This means that the nurse coerced or manipulated the testator into executing the will. If the evidence supports this argument, the court may decide that because of the undue influence, recognizing this will would lead to injustice.

It's important to note, however, that there really has to be evidence of coercion or manipulation in order for a Washington court to find undue influence. The fact that one family member got more than another in the will is not in itself enough to invalidate a will.

For example, a testator may provide more for a daughter than a son simply to repay the daughter for all the time the daughter devoted to driving the testator to medical appointments and grocery stores while the son was unable to help. In this case, the son may feel slighted and may feel that his sister had an unfair advantage in spending so much time with the testator, but without evidence of coercion or manipulation he will not be able to show undue influence.

Washington residents who want to execute a will hope that their heirs can avoid these disputes. It's important to write a will that expresses the intent clearly, and it's important to communicate within a family so that the will doesn't come as a shock.

Source: Marco Eagle, "It's The Law: Adult child caring for parent does not equal undue influence," William Morris, Aug. 15, 2013

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To speak with an attorney at Gellner Law Group about estate planning, probate, trusts, wills or tax controversy, contact our law office in Kent, Washington, today. You can call 425-336-2908 or send us an email. We provide representation across the entire Seattle-Tacoma metropolitan area.

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