THE HIGH-RISK WILL: WHERE PLANNING AND LITIGATION COLLIDE

By Charles M. Riffle^* and Andrea Pierotti^**

I. INTRODUCTION

It can be difficult for estate planners, who often are not litigators, to anticipate which of the instruments they draft will be contested, or how the instruments will be attacked. Moreover, estate planners sometimes need to act quickly to memorialize the client’s testamentary wishes, especially when faced with a dying client. This article provides guidance which estate planners can use when confronted with the daunting task of preparing estate planning documents for clients whose capacity may be questioned, or who may be alleged to be under the influence of others. The advice is from the perspective of the litigator who will be defending the validity of the instruments. By following the recommendations in this article, the planner can reduce the chances of a postmortem challenge to the instruments and, if a challenge is made, provide defense counsel with powerful evidence to defend the instruments.

II. TIPS TO HELP ESTATE PLANNERS AVOID A CONTEST