Amazingly Bad Advice - Part II

Continuing from last week’s post on really bad advice from sources you’d expect to know better, let’s return to the column by money mag editor Richard Eisenberg. After giving misleading information on dying without a will, Mr. Eisenberg then says that having a will prevents “family skirmishes.” Good luck with that in Minnesota.

In fact, since a person who goes to the trouble to make a will is stating her unique preferences, and she may state her wishes in an unusual way, having a will may be more likely to lead to a legal challenge in court than not having a will. You should make a will, but not because it’s likely to lead to less conflict.

In Minnesota, you can’t even succeed with what used to be called “in terrorem” clauses—you know, those provisions that say, “if you challenge this will, you get nothing.” You can put one of those in your will in Minnesota, and it might lead an uninformed person to choose not to challenge your estate plan, but if the person gets legal advice on the question they’ll be told, “if you have probable cause for your challenge, that provision won’t affect the ultimate distribution of the estate” (see MN Stat. §524.2-517). And when you look at the definition of probable cause in the cases, you learn that it’s really, really hard NOT to have probable cause. So the clause has basically no effect.

The truth is, you should make a will, but you should not see it as a means of avoiding family conflict. Better to think of it as a catalyst for resolving family conflict before you go. If you wish to disinherit a child or limit your spouse’s inheritance rights in your estate, or provide some other unusual distribution for your assets, your best course is to see a lawyer, get the will drafted carefully, and have the lawyer “paper the file”—that is, keep very careful documentation of the proofs that you had the required capacity for making a will when you signed it, that it said what you wanted it to, and that you were making an independent judgment (no “undue influence”) when you decided how to give away your property after death. Then, put your best energy into your own personal growth, conflict resolution, and trying to help those you may have chosen not to benefit to see why it is for the best that you’ve done so. If you’re really successful, maybe through that process you’ll even have cause to change your estate plan, because the dynamics of the damaged relationship, the maturity level of the disfavored person, or the priority of a cause over a relationship may have changed.

As always, this is not legal advice, because internet columns—however accurate they may be, as I always strive to make mine—are limited by their general applicability. If you’d like help using your estate planning process to make progress minimizing family conflict now, please give me a call.

A. E. King, J.D.
Attorney at Law
Shoreview, MN