An Ounce of Prevention… was a regular column for Mortmain, the quarterly newsletter for members of the Estate Planning Section of the Atlanta Bar Association. Issue #1, Spring, 1999.

If you are concerned about the possibility of a will contest, I encourage you not to focus solely on drafting your documents to minimize the risk that, if brought, such contest will be successful and destroy the testator’s carefully crafted estate plan. While this goal is not to be ignored, an examination of the case law, in Georgia and around the country, as well as the related literature, should provide the planner with some comfort that the vast majority of such contests eventually fail. The real problem is that the damage (years of protracted litigation, delays in addressing estate administration concerns, delayed distribution of estate assets, legal fees and irreparable destruction of family relationships) is simply in the bringing of a will contest, regardless of which party is ultimately successful. Therefore, it is at least as important for lawyers to consider steps that can be taken to minimize the likelihood that a dispute arises in the first place.

There are countless steps that can be taken to minimize the likelihood of a will contest. Some simply involve encouraging better communication among the testator and his family members. Others make the potential caveator think twice before embarking down that road. The following suggestions focus on the actual execution of the will, and are just a few steps that will douse some of the fuel from the dispute fire:

• Will Execution Ceremony: One of the best ways to avoid a will dispute over issues related to will execution is to make sure that the will is executed properly in the first place. In doing so, it helps if you have a “will signing ceremony” that you use repeatedly with a specific checklist that you always follow. Years down the road when you can barely remember your client’s name, much less recognize her in a crowded room, you can at least testify that you know you took certain steps in her ceremony, asked certain specific questions, and followed certain specific procedures because you always do it in every will signing your office performs.
• Attesting witnesses: If potential problems are suspected upon testator’s death, you may want to consider not just using the nearest staff members to witness the will signing. Rather, go to the trouble of gathering lay witnesses, friends and relatives who have known the testator for a number of years and who will be able to withstand the spotlight of courtroom testimony and cross examination if the situation arises. (It would obviously help if they are also likely to outlive the testator.)
• Contemporaneous Affidavits: Even if your are forced to use office staff to witness will signings, consider heading off potential incompetence claims by gathering affidavits from close family and friends of testator, including, if possible, his attending physician(s), prepared at or near the time of will execution, not as witnesses, but as contemporaneous expressions by respected family and friends who knew the testator well over a long period of time, were aware of his condition on or about the day the will was signed, and can effectively testify about how the testator’s condition that day compares to the affiant’s perception of testator’s condition for periods of time prior to execution. Even memories of close family and friends dim with time, and affidavits will refresh those recollections. However, when witnesses to the will are the attorney’s staff, meeting the testator for the first time at the will execution, they have little real memories to refresh and nothing to compare testator’s condition to. Years down the road they will have little persuasive testimony to provide on the issue of competence.
• Experts: If you can get the client’s doctor, psychiatrist to witness, all the better, but good luck. Even if the doctor won’t witness, he may agree to be present, perhaps to perform a pre-execution evaluation. The evidentiary benefit of having the contestant’s expert concede that the opinion of an expert present at the time of execution is likely to be more reliable than one answering hypothetical questions cannot be overemphasized. More importantly, his presence may diffuse the prospect of a contest and possibly avoid one altogether.
• Self Proving Affidavit: Consider expanding your self proving affidavit or even drafting a separate one for witnesses to sign contemporaneously which will outline and preserve the witnesses’ observations of the testator’s state of mind and expressed intent.
• Formality: Don’t overlook the formality of the will signing. Make sure you are alone with the testator and witnesses. Never allow any other relatives (particularly those who are beneficiaries) in the room when the will is being executed. Go over will contents again and make certain that testator expresses his understanding of its contents to the witnesses. Make sure witnesses are comfortable with the competence of the testator before the will is executed.
• Checklist: Make sure you go through your checklist of will execution procedures to ensure that the will was properly executed and attested to, and include it with your file to refresh your own recollection years later.
• Videotaping: I’m not a big fan. If poorly done, it could do more harm than good. However, if the stakes are high, you may want to hire a professional to create a “day in the life” video of your client on the day of the will execution, scripted and choreographed to demonstrate to the world your client’s competence and freedom from undue influence.
• Multiple execution of estate documents: If you suspect that a will might be challenged based on incompetence or undue influence grounds, consider having the client come back to your office and republish or re-execute the same will a number of times over the course of a few months or a year. It will strengthen the case that the testator was competent and acting without undue influence, and will, for obvious reasons, make the caveator’s task of setting the will aside difficult and expensive.

If you keep in mind the things to which you are likely to have to testify in order to prove a prima facia case of a valid will execution, how that testimony might be perceived by perfect strangers years down the road, and act accordingly, you will have gone a long way towards discouraging questionable caveats.