Many people never get around to drafting a will, so families are often grateful when they find a testamentary instrument among their loved one’s possessions after they die. The presence of a will takes the guesswork out of estate administration and can help prevent families from fighting over a loved one’s legacy.
Unfortunately, some people end up shocked and disappointed by the contents of a will. A parent may have left an inheritance for all but one of their children or otherwise made choices that seem to punish or single out specific family members. Occasionally, those disappointed by the contents of an estate plan may have grounds to contest it by alleging that the document was outdated and therefore invalid.
What are some of the warning signs of outdated documents that could be vulnerable to legal challenges in probate court?
Omissions involving children
Perhaps a testator drafted their will multiple years before the birth of their last child. Their documents may include all of the children but the youngest. Especially if the testator does not explicitly mention the decision to disinherit one child, their omission from paperwork may be grounds for a contest.
Outdated asset information
Another indicator that an estate plan may be outdated and potentially invalid is the inclusion of assets that the decedent liquidated years ago. They might refer to a business that they have since sold or a home that they listed when they retired and decided to move to a single-story ranch that was more accessible. Estate plans that include old assets that no longer belong to a testator can be vulnerable to litigation.
Details that predate major family changes
Maybe the testator divorced, but their former spouse is still the main beneficiary or the party named to a position of authority in their estate planning documents. Perhaps their documents still name a deceased family member as a beneficiary or their personal representative. Maybe they remarried, and there is no information about support for their new spouse in the paperwork.
In scenarios where families can credibly claim that an estate plan is outdated and therefore inaccurate, the probate courts may set the document aside or make adjustments based on the changes to the testator’s family and circumstances. Recognizing when probate litigation may be necessary can help grieving families better protect the legacy of a loved one.