Challenging a Will: Legal Rights and Practical Considerations

When someone is disinherited from a parent's will, the question often arises: can they legally contest the will and receive what they were supposed to get? The answer is yes, but it's not as straightforward as it might seem. This article will explore the legal process, financial implications, and practical aspects of disputing a will.

The Legal Process of Contesting a Will

Disinherited individuals often have the legal right to contest a will if they can prove that the testator (the person whose will is contested) lacked the mental capacity to make the will or if there was undue influence, fraud, or forgery involved. Hiring a lawyer is essential, as the process can be complex and costly. Depending on the circumstances, legal fees can range from a few thousand to tens of thousands of dollars. Hence, it is crucial to have a compelling case that justifies the expense.

In one case, my wife's step-sister contested the will on the grounds that the step-mother did not follow the father's explicit wishes. The legal process cost over 15,000 dollars and took 18 months. Despite the high costs, our case was strong, backed by valid documents that proved the step-sister's actions were against the father's will. This example underscores the importance of having irrefutable evidence to substantiate your claims.

Emotional and Practical Considerations

Contesting a will is not only a legal endeavor but also an emotional one. The process can be lengthy and stressful, demanding a significant emotional toll. Before embarking on this journey, it is essential to assess whether you are emotionally ready to endure the rigors of litigation. The duration and complexity of the process can take a toll on your mental health, especially if you are seeking to challenge a will because of deep emotional reasons.

Given the case of my estranged sister, who has been out of our lives for over two decades, contesting the will would be challenging. Despite mutual friends' suggestions, my family had prepared for her potential legal challenge. Our attorney reassured us that with no recent visits or communication, she would not have a strong case. This case highlights the importance of understanding the implications and being emotionally prepared.

Circumstances Leading to Disinheritance

Outline the common reasons why an individual might be disinherited. Being estranged from the deceased, a lack of communication, or not helping with daily needs and activities are frequent justifications. Understanding these reasons can help explain why individuals are not included in a will, even if they believe they are entitled. In cases of estrangement, it's common for people to be left out of a will, as the testator may have made the decision deliberately.

"Estrangement" is a notable reason for disinheritance. For example, if a family member has been avoiding contact, such as my sister who estranged herself from us over 20 years ago, the testator might choose to exclude her from the will. Our family's experience also shows how such decisions can persist, even after the testator's death, as evidenced by the legal challenges and the preparedness of the family.

Attorney's Role and Precautions

Discuss the role of an attorney in the will contesting process, including the importance of a pre-medication evaluation by the attorney to confirm the testator's mental state at the time of the will. Most attorneys will conduct a mental status examination and ensure that the testator had the appropriate capacity and understanding when the will was created.

The Mental Capacity Assessment: It's crucial to understand that most individuals know why they are left out of a will because they lack the legal entitlement. In fact, most people are aware of the decision they are making when they create a will. The only time a mistake might occur is if someone has been accidentally omitted, though this is rare. To prevent such mistakes, a thorough assessment of the testator's mental capacity is usually performed.

Preparation and Evidence: To have a strong case, you need to gather evidence that supports your claims, such as mental health records, communications, and witness testimonies. Our family's experience with the estranged sister illustrates the importance of having a clear and verifiable rationale for contesting a will.

Conclusion

In conclusion, while legal rights exist for contesting a will, the process is complex and often expensive. Emotionally and practically, it's crucial to be prepared for the challenges and have a strong case with valid evidence. Legal considerations, mental capacity assessments, and emotional readiness are all crucial factors in deciding whether to contest a will. Understanding the reasons behind a will's terms can also provide insight into the testator's intentions, and hiring an attorney with the right expertise can be instrumental in pursuing a successful legal challenge.