Family Fighting: Will Caveats and How to Avoid Them

When you create a will, and follow the proper formalities, it would be safe to assume that your wishes as set out in the document will be followed after you pass. Sometimes, that’s not the case. Death and probate can create more controversy than the will’s creator could have ever anticipated.

If one of the beneficiaries of the will feels like they were given a smaller share then they deserved – or someone else is getting a larger share – they may wish to raise some questions about the will itself. “Mom told me I was going to get half – but she only left me a third. What’s going on?” Sometimes there’s nothing the beneficiary can do about it – that’s just how life goes. But, sometimes the beneficiary may have a remedy.

What is a Will Caveat?

If a beneficiary has some specific information that would prove that the will is not valid, they may challenge the validity of the will through a caveat proceeding. Normally caveats will be successful in one of two scenarios: 1) the testator was not competent when the will was executed; or 2) someone exerted undue and improper influence over the testator at the time the will was created and executed. If proven, either of these scenarios can void the will and force the estate to be governed by intestacy, rather than the will’s provisions.

How Can You Avoid a Caveat?

Generally speaking, working with an experienced estate planning attorney will help to minimize or eliminate the risk of a caveat because the attorney will know what to look for. If there is any evidence of a lack of mental capacity in the testator, a physician should be consulted to make a determination of whether the testator is competent to create the will. Likewise, to avoid the issue of undue influence, the attorney will normally require a meeting with the testator alone, outside of the influence of a potential beneficiary under the will. Even though someone like a child may be pushing the issue to get the will created, the testator is the client, not the child.