As a child, grandchild or sibling, chances are that if you are left out of a will you’re likely pretty upset. In my experience, however, it is equally likely that you’re not surprised. In most cases, the reasons for the disinheritance is well known to all the parties involved.
What if that is not the case? What if the person that stands to inherit is a recent acquaintance or if everything is going to that shady family member who started visiting when the loved one became ill? When you suspect that the will simply did not expressed the decedent's wishes or you believe that undue influence or outright fraud may have occurred, there are some steps you can take.
Contesting the will as a spouse: the right of election. If your spouse left you out of his or her will, you would be entitled to the right of election in most states. This means that you can petition the court in order to exercise your right of inheritance as the spouse which, in Virginia, usually results in a 1/3 share of the estate along with other spousal allowances. Virginia’s laws in this regard will change on January 1, 2017 so that the length of the marriage will play a role in what the surviving spouse will inherit. It is amazing to me how many times I am faced with a grieving widow whose late spouse simply never got around to redrafting their old will after their marriage, more times than not there was no intention to disinherit the spouse.
Contesting the will as another type of heir. Other than a surviving spouse, no one has an automatic right to inherit anything, meaning a person can cut out anyone they choose. However, if the disinheritance just doesn’t pass the ‘smell’ test, there are way to contest the will’s validity on other grounds:
- Improper signing: If the will wasn’t signed in accordance with state laws, the will may be thrown out. For example, in most states a testator must sign the will in the presence of two witnesses who are unrelated to him or her by blood or marriage.
- Lack of capacity: We’ve seen this many times in the case of billionaires changing their wills right before they pass away. If the testator can be shown not to have had the capacity needed to create and sign the will, then the will may be invalidated. People who have dementia can still be considered capable of executing a will if they intermittently displayed the necessary mental capacity.
- Undue influence or fraud: What if a person was forced to sign the will or signed it without realizing he or she was signing a will? What if someone swapped pages in the will when the signature happened? In each of these instances, the will could be invalid.
- A later will or codicil: A will can be invalidated if another one, signed later, is discovered. The most recent will is used, and it’s as if the old one doesn’t exist. If the testator signed a codicil or amendment to the existing will, both the codicil and will are probated. Any changes or additions made in the codicil will control the distribution. A codicil can also be contested, just like a will.
When a will is invalidated, a number of things could happen. If there’s an older will that was signed before the now invalidated one, that one could take effect if the court approves it. If there’s no other will, the estate is divided according to the terms of state intestacy laws. Typically, assets are divided among the spouse and children. Other relatives may get something if there’s no spouse or child. One thing is for sure, will contests are contentious and expensive. The best way to guard against having a will contested, especially if you plan to disinherit a natural heir is to seek the advice of an experienced estate planning attorney. For more information on estate planning, click this link or register online for one of our seminars on this topic.
Reference: business2community.com (June 28, 2016) “How to Successfully Contest a Will”