There are two ways to approach defending your last will or trust in a claim brought by an individual or individuals seeking to change the terms you have chosen. One way is to simply allow your personal representative or trustee to advocate for your choices. Another method is to include a non-compete clause that disinherits all claimants if they lose their challenge or even make the challenge in the first place.
A non-compete clause can be a powerful deterrent to a beneficiary who feels entitled to more than the stake offered if he knows that simply submitting a challenge will result in the forfeiture of that stake. But it is not a deterrent to a relative deleted from estate plan entirely. This may thwart the attempt of a relative seeking to actually protect your interest in how your property will be distributed upon your death or to recover money taken or spent by someone taking advantage of you before your death.
The non-compete clause requires more attention
When your estate plan was drafted by your attorney, the discussion regarding the non-compete clause may have been brief. But it likely deserves more attention. It seems like a good idea to want these sample terms in your document:
1. Delete all heirs not specifically mentioned in the document.
2. Cancellation of the quota offered to any person who requests:
- To claim an interest in your real estate, or to increase their interest or claim certain assets in your real estate
- to invalidate your document or any condition in your document, or
- Take any part of your property in a manner not specifically described in the document
Many non-compete clauses will simply treat the competitor as predeceased (or predeceased without leaving an issue), thus passing their share on to other terms in the document. In some states it is important to include specific direction on what happens to their forfeited share.
A non-compete clause sounds all well and good when the person challenging your real estate plan is trying to thwart your actual intentions, but what if the charges against them had some merit? For example, there are many cases brought before the courts because there is probable cause for the deceased to have been subjected to undue influence, even Elder abuse, by the caregiver or a relative who is in charge of their finances. In some cases, other relatives first discovered such abuse only after discovering the exhaustion of the estate and accepting a new last will in favor of that person over the deceased’s family. A non-compete clause in that last will can result in complete disinheritance to a petitioner seeking to protect the estate and anyone else who appears in court in support of that endeavor.
The rules for a non-compete clause can vary by state
Not all states handle a non-compete clause the same way. Some states refuse to implement it as a matter of public policy. Others interpret the non-compete clause strictly because they do not favor any expropriation. In these states, a clause that is too loose or vague may be invalidated. Many states that support a non-compete clause do so to further public policies they find important, such as protecting the intent of the deceased, deterring challenges by frustrated heirs seeking a larger share at the expense of other beneficiaries and protecting the estate from legal expenses in defending an uncompete challenge. fair.
There may be other considerations opposing the application of the non-compete clause. You should take these things into consideration if you want to detail or exclude a non-compete clause from your documents. They include:
1. Allow the court to determine the fairness of the challenge that may actually protect your intentions.
2. Highlight any undue impact that has depleted your assets or influenced your decisions if you were wrongfully isolated from family or subjected to financial or personal abuse by a caregiver or relative.
3. Avoid penalizing an appropriate recourse made in good faith by disqualifying any petition or claim brought by a person:
- You are only seeking additional information about your real estate
- Ask for the expenses to be documented by the caregiver or relative responsible for your finances before your death
- Request an interpretation from the court of your last will or trust deeds
- Seek to reject a last will that was drafted and executed under questionable circumstances, or
- Simply make an appearance to inquire about the appointment of the personal representative or the alleged residency status
This excerpt from the New Hampshire Statute on Non-Compete Clauses (NH Rev. Stat. Ann. § 564-B:10-1014(b)) perfectly describes the wisdom of designing a non-compete clause to deter challenges that seek to thwart your intent while protecting your property from Misuse:
A non-compete clause is enforceable pursuant to the express terms of the non-compete clause regardless of the existence or absence of probable cause, good or bad faith of the beneficiary in taking the action justifying the forfeiture of the whole or part of the beneficiary’s interest in the trust under the terms of the non-compete clause. A non-compete clause is unenforceable to the extent the trust is invalid by reason of fraud, coercion, undue influence, incompetence of the probate, or any other cause. Where an action is taken solely to challenge the actions of the trustee or other person entrusted with the trust, the non-compete clause shall be unenforceable to the extent that the trustee or other agent has committed a breach of their fiduciary duties or breach of trust.
Make sure caregivers are watched by others
Finally, all your efforts to document your intentions in your last will and any trust It may be undone if you have been taken advantage of by a caregiver or relative who has succeeded in isolating you from other loved ones for their own benefit. You can now take steps to ensure that any caregiver, including a sibling or other relative, is monitored by several trusted people.
First, identify your chosen estate planning attorney for several relatives and give that attorney permission to share general information about your documents, including specifically whether new documents are required or appear from another law firm.
You can also craft your own project to delegate Forms for designating multiple people to serve instead of one person or designating a second person whose role is not to make decisions but to monitor your agent’s activity and contest any questionable expenses.
As you get older, you can be sure that a friend or relative is not your primary person shepherd It is included in your decisions to select vendors for lawn care, housekeeping, home improvement, or home maintenance. Most importantly, keep in touch with friends and family and encourage frequent home visits, texts and calls.