How to create a non-contestable will?

Howdy asked...

How does one create a non-contestable will? My mother is suffering from brain cancer. My father also died from brain cancer. My mother remarried five years ago and her new husband wants the bulk of her assets. She has always kept their finances separate; however, she never created a prenuptial agreement, nor enacted a will after getting married. When she was diagnosed we immediately saw an attorney to create a will, power of attorney, and medical directives. We spent the next several weeks arranging her beneficiary status on all of her and my father's retirement accounts and life insurance, and moved the home, mountain property, and time share into quit-claim deeds in her and my name. Her husband is bad with money and has racked up 40k + in credit card debt in her name. He filed for bankruptcy the year prior to marriage and nothing is in his name. We added him to checking to write medical checks. He has stated he will contest her will. How do we prepare?

Expert Answer

Liza Hanks is the founder and owner of FamilyWorks Estate Planning, a law firm with offices in Campbell and Los Altos, California, and the author of The Busy Family's Guide to Estate Planning (Nolo, 2007).

It sounds as if you've done a good job in getting your mother's affairs in order.

Wills are actually quite difficult to contest. Your mother's husband would have to prove either that your mother did not have the capacity to make a will because she was not mentally competent to do so, or that she was put under undue pressure to make a will that did not represent her true wishes.

Both of these issues are usually hard to prove. But to be on the safe side, you would want to be able to document that your mother was competent and not under any pressure.

For example, if your mother is still competent, it might be a good idea to have her videotaped stating that her current will reflects her wishes.

If your mother hired an attorney to help draft the will, you should also consult with him or her to see what evidence there is of your mother's competency. Ideally, the attorney met with her alone to ascertain that she was not under pressure to make the will she did.

Be aware, however, that your mother's husband will most likely be able to claim an "elective share" of your mother's estate, regardless of what her will says.  In most states, a spouse who does not inherit under the will of their deceased spouse may claim a share ranging from 1/3 to 1/2 of a deceased spouse's assets, instead of whatever the will left them. This varies from state to state and can also vary with the length of the marriage and the number of children the decedent left behind.