Ethics on a Last Will & Testament

By A.L. Kennedy

Whether you are making your own will or helping someone else to make his, you should consider carefully any ethical concerns that arise. Common ethics questions related to wills include whether you may disinherit a spouse or child and how much assistance it is proper to give someone else who is making a will. An attorney who practices estate law in your state can help you address your specific ethics questions.

Disinheriting a Spouse or Children

When making a will, the testator often leaves his property to his spouse and/or children. However, some people wish to exclude either their spouse, children or both out of the will entirely. Most states will permit you to leave your children out of your will so long as the will indicates that the omission is deliberate. Many states have protective provisions for a surviving spouse and do not allow a spouse to be excluded from the assets of a shared estate.

Fraud

When helping someone plan or make her will, you should keep several ethical issues in mind to avoid a will contest after the testator dies. First, you should consider your behavior carefully to avoid a will contest based on fraud. Fraud occurs when someone lies to the testator or misrepresents facts to get the testator to leave him a bigger share of the estate. Lying to a person making a will for personal gain is a serious ethical concern. If you are taking care of someone who is making his will or may be called upon to help someone make his will, you may wish to consult an attorney so that you know what behavior might be considered fraud in your state.

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Undue Influence and Coercion

Like fraud, undue influence and coercion are unethical actions taken for personal benefit. Both may be the basis for a successful will challenge, and wills are often contested on the grounds that a caretaker of the testator committed undue influence or coercion. Both undue influence and coercion involve the caretaker or person helping with the will using his relative power over the testator to get what he wants, rather than to help the testator ensure her own wishes are expressed. You may be able to avoid the appearance of unethical undue influence or coercion by always having a third person present when you and the testator discuss, plan or prepare the will.

Forgery

Writing or signing an important legal document while pretending to be someone else is unethical, and forgery of a will is no exception. In the case of wills, the forgery may alter some part of the will or the entire thing. It may involve the provisions of the will or may be an alteration of the date or signature. To avoid having your own or another's will suspected as a forgery, make sure it is witnessed and the original is kept in a safe place. Make changes by making an entirely new will or by writing changes on a separate piece of paper along with the date, your signature and the signatures of two witnesses, and storing these changes along with the will. Always ensure your will contains the complete correct date it was made.

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How to Prevent Someone From Contesting a Will
 

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How Is a Beneficiary Removed from a Will?

When a person is named in a will, he is called a beneficiary. Heirs, on the other hand, are individuals who stand to inherit from a relative who failed to make a will; thus, leaving inheritance division to the laws of intestate succession. Testators, or will makers, may remove beneficiaries from wills by executing specific documents that effectively disinherit the beneficiary -- usually by express terms.

What Are the Chances of Contesting a Will & Winning?

A will contest or will challenge is a case brought to a probate court in order to test a will's validity. Most will contests are brought on the grounds that the testator, or the person who made the will, did not have the capacity to make a will or was unduly influenced. Because probate courts assume that a signed and witnessed will is valid, a will contest can be difficult to win, according to FindLaw.

Contesting a Will as a Beneficiary

Will contests take place in probate court: One of the functions of probate court is to hear any disputes pertaining to the execution of a will. A beneficiary who seeks to contest a will must have verifiable grounds upon which to do so. If a probate court deems the evidence sufficient, it may declare the entire will invalid or merely strike certain provisions.

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