Being left out of a will, especially when you had reason to believe you would be included, can be an unsettling experience, but you may have some recourse. First, you’ll want to at least clarify what has happened. This may involve taking time-sensitive steps. Based on your assessment of the situation, you may decide to contest the will. But know that doing so can be challenging: In most cases, you must prove coercion, diminished mental capacity, or outright fraud to have a will’s terms dismissed.
Key Takeaways
- If you are left out of a will and believe that you should contest it, prepare to face an uphill battle to get a portion of the estate.
- Be certain that contesting the will makes financial sense, and that the potential gain will far outweigh the legal costs.
- Also make sure that contesting the will makes emotional sense as the process is a long and often stressful one involving multiple steps.
- To succeed, you must prove coercion, diminished mental capacity, or outright fraud—which are all difficult to prove.
- Talk with your attorney about your chances of getting the will invalidated and ask about other alternatives that may exist.
If one of your parents left you out of their will, it’s important to know that in most states, parents can legally disinherit a child, provided the child isn’t a minor. Check your state law’s disinheritance provisions. In Louisiana, for example, a parent cannot disinherit children under the age of 24 or those who are unable to care for themselves due to a mental or physical impairment.
Judge the Costs
Before you put a retainer on a lawyer, spend some time assessing on your situation. If you are not family and were never named in a previous will, you have no standing to contest the will. If the testator (the deceased) discussed an inheritance with you previously, write down as much as you can remember of the conversation details. Using this, estimate the dollar value of the inheritance (whether money or possessions). If it was never discussed but was implied, you will need to give a high and a low estimate on what you could have reasonably received based on your knowledge of the testator’s estate.
If this amount isn’t enough to cover the cost of a consultation with an estate lawyer, walk away. Even if it is twice as much as the retainer, walking away may still be the better course as some of the worst estate fights cost more in legal fees than the inheritance itself. So, think carefully before you lawyer up.
Important
Make sure contesting a will is winnable and financially smart—being left out of one is terrible, but wasting time, money, and emotional energy fighting a losing battle may be worse.
Get a Copy of the Will
Anyone who creates a will has the final say as to who is and isn’t included in it. If you believe the will was changed, perhaps under duress or as a result of the testator’s diminished mental capacity, then you can hopefully find out the how and why. Ask the executor for the current will, any previous versions, and a list of assets.
A good executor will usually compare the will with previous copies and will note any significant changes. So it is possible that a notice from the executor will be your first clue that you were removed from the will. If you are not told before the will enters probate, you will be able to get a copy from the probate court. You will also be told how long you have to contest the will. States have different rules and timelines. For this reason, you may want to have a lawyer help you get a copy of the will and file the contest sooner rather than later.
Lawyer Up
If you managed to get a copy of the will without a lawyer, you should now find one. Show the lawyer the will and state your reasons for wanting to file a legal challenge.
Basically, the testator has the right to disperse the estate according to whatever whim catches their fancy. Therefore, you’ll need a valid reason to contest the will. The reasons are fairly straightforward. You need to reasonably prove one of the following things:
- The testator lacked the mental capacity to understand what was going on when the current will was signed.
- There was undue influence—the testator was pressured into changing the will—or there was fraud or forgery.
- The will failed to meet state regulations and is thus not legal.
Your lawyer will be able to tell whether it is a winnable challenge on these grounds. If you don’t have grounds, there is still the possibility you can make a claim on the estate. An example would be if you did unpaid work for the testator that you can claim costs for. Again, you would have to consider the value of the claim against the costs of making it.
File a Contest
If you have grounds, your lawyer will file a contest against the will. The goal of this legal proceeding is to invalidate the current will and enforce a previous will that lists you as a beneficiary. If you have been left out of several revisions of the will, your chances will be slimmer because multiple wills must be invalidated. The burden of proof will also fall on you, so be prepared for a difficult fight.
Consider Mediation
Rather than fighting it out in an all-out court battle that will deplete you and the estate in legal costs, your lawyer may be able to guide the estate to mediation. Mediation may be able to get you closer to a resolution than a prolonged court battle.
Can a Parent Leave Their Child Out of Their Will?
Generally, they can, but not if the child is a minor. But if an adult child was left out of a parent’s will without being explicitly excluded—that is, there’s no language that clearly or explicitly writes them out of an inheritance—the courts may rule that it was an inadvertent exclusion and that the adult child is entitled to a share of the assets and property in the will.
What Is a No-Contest Clause in a Will?
A no-contest or forfeiture clause says that a beneficiary will lose their inheritance if they take any action to contest the will. Many states limit the enforceability of these clauses to make sure that beneficiaries can challenge fraud conduct in relation to the will.
What Are Valid Reasons to Contest a Will?
There are three common reasons to contest a will:
- The deceased was not of “sound mind” when the will was being executed. The reasons might include dementia, insanity, intoxication, and other types of incapacity.
- There was undue influence, fraud, or forgery involved in the creation of the will.
- The will failed to comply with the rules of the state in which it was being drawn up or revised.
The Bottom Line
It can be devastating to find out you have been excluded from a will, but there are steps you may be able to take to contest the will. However, it’s important to carefully consider your options because the time, cost, and emotional aggravation may lead you to decide against taking such a step.
Read the original article on Investopedia.