Here in Fort Collins, Colorado, when you consider all who die, a very small percentage of the surviving families end up in court fighting over the estate left by the deceased. But the fear of such a fight is used by trust salesmen/lawyers to convince many to part with several thousand dollars to create a trust. Therefore it is very instructive to look at a family fight to understand the few instances when such a fight is likely and what can be done to prevent it.
Currently such a tragedy is being played out over the estate of Mickey Rooney. For the details check out the following link: http://www.mercurynews.com/entertainment/ci_25753709/mickey-rooneys-family-fighting-over-his-will
The first thing that should be learned is that prior to Mr. Rooney's death there was a huge warning that a fight would be forthcoming. That warning was two fold. First, Mr. Rooney had significant wealth AND he was NOT leaving his wealth to his eight children and his wife, but to a stepson. And, second, Mr. Rooney had become incompetent which required the appointment of a conservator. So, when the testator's competency is an issue and the most common and natural beneficiaries (spouse and children) are excluded, coupled with a significant estate, you have the ingredients for litigation after death.
Most of us do not have significant wealth, so we do not need to worry about litigation over our estates. Secondly, most of us leave what wealth we have to our spouse and children. So again we do not need to worry. And finally most of us do not change our will to exclude our spouse and children after we become incompetent...so again no worries.
But, if we do have wealth, may be considered incompetent, and want to exclude our wife and children from our estate, then how do we protect our estate from litigation? The nub of the problem is not the amount of wealth nor, is it the excluding of the most common recipients (the spouse and children). The nub of the litigation will be Mr. Rooney's competency when the document excluding the spouse and children was signed. A careful lawyer at the time of that signing would do the following:
1. Have medical/mental evaluations of the person making the will (in this case Mr. Rooney), done immediately before the signing by respected mental health evaluators. If the evaluators indicate that the proposed will signer is competent then sign the will. If not, either wait until he/she becomes competent or do not sign the will.
2. Have video and audio recordings of the will signing with an extensive questioning of the will signor regarding his/her understanding of his/her property and why he/she is excluding the spouse and children. If the signor's responses and demeanor are not convincing as to his/her competency, then either wait until they are, or do not sign the will.
If there is the convincing evidence of Mr. Rooney's competence, such as that described in paragraphs 1 and 2 above, the court should be convinced that he was competent and his will excluding his wife and children should be honored. On the other hand, if no such evidence exists and the wife and children can present evidence that Mr. Rooney was incompetent at the time of making the will that excludes them, then that will should not be honored and the estate should be given to the wife and children.
So, in any situation where a will is to be signed involving an estate with significant assets where the beneficiaries are not the wife and children, have the evaluations performed and record a well prepared will execution that demonstrates competency. That preparation should avoid litigation, but if it does not, it should dictate the outcome of that litigation.