Estate Planning & Probate Specialists

Estate Planning & Probate Specialists

  1. Home
  2.  → 
  3. Estate Administration
  4.  → When a will provision is unworkable and invalid

When a will provision is unworkable and invalid

As we know, a will is an essential element of estate planning. When a person creates a will, he or she usually assumes that their estate planning needs are completed. Peace of mind along with a smooth transition is on the way, or so you think.

However, just because you have a will does not make the entire document legal. And such is true when provisions within the document fail to pass legal muster. In many such cases, when a will comes under question, the courts clearly understand that any provision brought on by fraud is invalid, often making the will invalid as well.

Fraud-related, no-contest clause

Many essential provisions exist in wills. They include naming the people who get your assets, naming an executor, revoking any previous wills, residuary clauses that ensure property acquired after death gets distributed to beneficiaries, and tax and debt repayments.

But sometimes certain provisions get invalidated. Here are some examples:

  • Fraud-related matters such as undue influence. Say a person’s child persuades his or her parent to leave the money to him and rather to the other children, and the testator does so. This is fraud due to deceit in order to profit.
  • The creation of certain provisions when the testator lacked the mental capacity to do so. Mistakes regarding facts because the will-maker is not of sound mind invalidate the entire will.
  • The no-contest or forfeiture clause may get scrutiny as well. This provision declares that if a beneficiary contests the will, he or she forfeits any asset which they received. However, if the court determines that the beneficiary has reasonable and good cause to contest the will, it may rule that the no-contest clause is invalid because of public policy.

Creating an effective will is essential. You want to ensure that every detail makes sense and remains legally applicable. Then you really gain peace of mind.