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Preserving Assets in a Will Contest

There may come a time when one finds it necessary to contest a will, and there can be legitimate reasons for doing so. This course of action is likely to cause emotions to run high, and it could be likely that a beneficiary under the will at issue may, upon receipt of estate assets, choose to sell, gift, convert or otherwise dispose of those assets, even during the pendency of the will contest. It becomes paramount for the contesting party, then, to preserve those assets for the duration of the litigation, if only to ensure that the estate remains intact by the end of the action. The mechanism for preserving the estate is not unique to estate administration and probate, but rather a simple and effective equitable remedy, injunctive relief. Injunctive relief effectively freezes the status quo and prevents depletion of the estate assets until all claims are settled.

There are four showings that must be made prior to obtaining injunctive relief. First, the party requesting relief must prove that irreparable harm will come to the party's interests if some form of injunction is not granted. The party's claim must then be analyzed to determine whether it has a reasonable probability of success on the merits. The relief sought must be shown to not produce an unreasonable burden on the party or parties subject to the injunction. Finally, the relief sought must be consistent with the public interest. Courts generally weigh the first two parts of the test more heavily.

From the perspective of the initial beneficiary under the will, however, such relief may be an imposition. It is still important that beneficiaries, whether subject to injunctive relief or not, preserve the estate assets on the occasion of a will contest. Disposal or depletion of those assets may backfire on the holder if the will contest is successful and the party that is now a former beneficiary must return assets that have been distributed to him or her already.

Careful drafting of the estate plan at the outset can reduce the chances for a will contest, and planning one's estate should anticipate the potential for such action on the part of the beneficiaries or other potential parties. The attorneys of McBrayer can assist in the drafting and execution of a thorough estate plan or can help guide a party or estate through a will contest.

This article is intended as a summary of federal and state law and does not constitute legal advice.

Lexington, KYLouisville, KYFrankfort, KY: MML&K Government SolutionsWashington, D.C.