When you are drawing up your estate plan you should consider the possibility of someone stepping forward to challenge your wishes after you pass away. This is one of the reasons why you should be very forthcoming with your estate planning lawyer when you are putting a plan in place.
If you leave out some relevant information, such as the existence of someone who has been disinherited that may not be happy, the administration of your estate can become quite complicated.
For an example, look no further than the estate of the relatively recently departed actor Sherman Hemsley. The former star of The Jeffersons classic sitcom died with a last will in place that left everything to his close friend Flora Enchinton. She was also named as the executrix of his estate.
She had been close to Hemsley for many years, and she was under the impression that he had no close family members still living. Hemsley had no children, and he had never been married.
Lo and behold, an individual from Philadelphia named Richard Thornton stepped forward to challenge the estate. Thornton claimed to be the deceased actor’s brother.
This brought everything to a standstill, and the body of Sherman Hemsley was not properly put to rest while the court was sorting everything out. After months had passed the court ultimately upheld the validity of the will, even though Richard Thornton turned out to be Hemsley’s half-brother after DNA tests were analyzed by experts.
Some people think that a will can be challenged, but a trust is something that cannot be challenged. In fact, it is possible to challenge the terms of a trust. The exact laws regarding trust challenges vary on a state-by-state basis.
Though a trust can be challenged, you can include a no-contest clause that makes it more difficult for anybody to successfully challenge the trust. However, even if there is a no-contest clause, under certain circumstances the individual issuing the challenge could be successful.
If you want to disinherit someone your feelings for this individual are self-explanatory. However, in many cases the wise course of action is to leave something to this person anyway to avoid a challenge to your trust or will.
When you are receiving something it can become much more difficult to conjure the energy that is needed to contest the final wishes of the person who did in fact provide you with an inheritance. This is true even if you may feel that you should have received more than you did.
Plus, someone who was named in a will or trust may be less inclined to issue a challenge for fear that the inheritance that was received could ultimately be taken away by the court.
Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.
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