By Lane V. Erickson, Idaho Estate Planning Attorney
When it comes to estate planning things don’t always go the way that they’re supposed to. Sometimes, a person will make changes on their own to their estate plan. Other times, a vulnerable person could be coerced or unduly influenced into making changes to their estate planning even when they don’t want to.
Additionally, even when a last will and testament is done exactly how the person wants and is legally binding, you may still have people who are upset about it. This could include a child who was disinherited by a parent or who is receiving less of an inheritance from their parent’s estate than other siblings. Whatever the reason is, I am often asked whether a person can contest a written will in Idaho.
A basic estate plan includes a last will and testament, a durable power of attorney, a living will, and a power of attorney for healthcare. Each of these documents is designed to perform a specific function as part of your estate plan. The purpose of the last will and testament is to give a person the ability to provide instructions on who will receive their money, property, and other assets after they die. Because so much is at stake when it comes to a written will, it’s often the source of great emotion and hard feelings.
Whether you are the person who created a written will, or you are an heir or a child of an individual who created a will, if you have questions or concerns, we can help. We offer a free 30-minute consultation to go over your specific questions and see if there is anything we can do to help you when it comes to your estate plan or how you are affected by an estate plan of another person.
The question for today’s article is whether you can contest a written will in Idaho? Keep in mind that this article is just a summary of the options available to you. It’s important that you do speak with a qualified estate planning attorney about your specific circumstances so you can get an answer to your questions.
Are no Contest Clauses Enforceable in Idaho?The first question we will tackle in this article is whether a no-contest clause is enforceable in Idaho. A no-contest clause is a section in a written will that says that if you contest the will that you will be penalized in some way. Usually, the language says if you contest the written will you will be treated as if you passed away before the decedent which means that you won’t receive any portion of the estate.
As an Idaho estate planning lawyer, I always use no-contest clauses in written wills. I often called them the “be nice” paragraph, because the language in these clauses is designed to keep the peace in the family and help everyone be nice to each other after a parent or other loved one passes away.
Idaho law is designed to carry out the specific intent of the person who created the written will. Because of this, there is a presumption that a no-contest clause will be enforceable as set forth in a written will.
Can I Still Contest a Will if I Have a Good Reason to?The question then is can I still contest a written will if I have a good reason to do it? The answer to this question is yes. Idaho Code § 15-3-905 states specifically, “A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.”
The statue does not provide a definition for what probable cause is. Because of that, we will rely on a basic definition. Probable cause is a level of reasonable belief, based on facts that can be articulated, that is required to sue in civil court. Before a person can be sued the civil plaintiff must possess enough facts that would lead a reasonable person to believe that the claim they are making is true.
When it comes to contesting a will, the person who wants the will thrown out has to provide specific facts showing why the will is unreliable or should not be followed. This means the person who wants to contest the will has to show that the will does not contain the actual intent of the decedent. In other words, the decedent was influenced or coerced or forced to sign the will even though they didn’t really want to or didn’t have the legal capacity to do it.
If there are some facts or evidence showing that the written will doesn’t contain the intent of the decedent then the contest proceedings will go forward. The party will be allowed to present their facts and evidence and they won’t be penalized by the no-contest clause in the will for doing so, even if they lose. However, if a person wants to contest a will and they don’t have any facts or other evidence to show that the will is invalid, then they will be penalized by the clause as it states.
If you have questions about a no-contest clause, or any portion of a written will, we can help. We have assisted numerous clients in the creation of their estate plan including a last will and testament and we are confident that we can help you too! Please contact us today for a free 30-minute consultation where we can answer your questions and help you with all of your estate planning and probate needs.
Enlist an Idaho Estate Planning Attorney to Help YouOur team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho estate planning problems.