Being left out of a will is not a situation most people want to be in. But sometimes when a person dies and their will comes to light, its contents throw survivors for a loop. The will can exclude people who had assumed they would be included, or in some cases, who were told that they would be included. If you are left out of a will, there are some time-sensitive steps you should take to at least clarify what has happened—and perhaps contest it. In most cases, you must prove coercion, diminished mental capacity or outright fraud to have a will's terms dismissed.
Make sure contesting a will is a winnable and financially smart battle—being left out of a will is terrible, but wasting time, money and emotions fighting a losing battle is worse.
Judge the Costs
Before you put a retainer on a lawyer, engage in some sober second thought. 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. Using this, estimate the dollar value (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. So, think carefully before you lawyer up.
Get a Copy of the Will
Anyone who creates a will has the final say in who is and isn't in the will. If you believe the will has changed, perhaps under duress or 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 copies of the will 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, so you may want to have a lawyer help you get the copy and file the contest sooner rather than later.
Remember when you calculated whether it was worth the legal fight? Now it's time to pay 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 his or her fancy. To contest the will, you need a valid reason. These are fairly straightforward. You need to reasonably prove the testator lacked the mental capacity to understand what was going on when the current will was signed, was pressured into changing it or that 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 files 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.
- 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.
- Be 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—all difficult to prove, no matter your personal convictions.
- Talk with your attorney about how realistic your chances are of getting the will invalidated and other alternatives that may exist.
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.