I suspect that my father left me out of his will. He has dementia that has become worse over the past couple of years. I think that he made a will leaving his entire estate to my brother. Is there anything that I can do while my father is still alive, or do I have to wait until he dies?
You cannot institute a court proceeding to challenge a will until after your father’s death when his will is offered for probate. There are, however, a few things you can consider doing that will make it more likely for you to mitigate your situation.
Ask your father to make a new will. You can ask your father why he is upset with you, correct the situation, and ask your father to make a new will. The more time you spend with him, take care of him and communicate with him, the more likelier he is to make a new will in which you will not be short-changed.
Document your father’ lack of capacity. Keep a diary with all information that you think will help you in a later will contest. Make sure to not do anything illegal, such as stalking or harassing.
Know who his medical providers are. Keep a diary of his doctors and healthcare providers. Make sure your father goes to a mental health professional who will gives him a mental examination, such as the mini mental exam (MME) or a similar test. If it is possible to get a doctor’s report on whether your father knows who his relatives are and knows what his property is and understands the content of documents, that would be ideal. You will need this information for when the will contest will be fought.
Keep recordings of voicemails and conversations. Especially if it is clear that your father is not acting rationally, does not remember who his relatives are, does not understand the extent of his property or the content of documents. You will need this information for the will contest.
Ask your brother or sister to share. Even if your father wants to cut you out of the estate, your brother or sister may agree to voluntarily share the estate with you. If that is the case, make sure you communicate this clearly, better with voicemails, texts or emails. You can consider entering into a contract to share the inheritance if one of you gets an unequal share. A contract like that may or may not be enforceable, but it is at least better than nothing, will give you an advantage later even if your brother or sister will want to back out, and will give you a “moral agreement” factor when convincing your sibling to share the inheritance.
A guardianship may or may not be a good idea. When you institute a guardianship, a court evaluator is assigned by the court and prepares a detailed report about the allegedly incapacitated person’s living conditions and mental capacity. This report can make or break your future will challenge case, so consult an estate attorney before even considering a guardianship. About 80% of guardianship reports I’ve seen attribute significant capacity to the allegedly incapacitated person, whether or not justified. In other words, a Guardianship can ruin your will challenge before the will challenge even gets off the ground, because court evaluators often overestimate the elderly person’s capacity, and rely on biased sources, such as the people benefitting from his will, for their information.
Another problem with the guardianship is that the elderly person about whom you are bringing the guardianship usually gets upset at you for dragging them into court and trying to take away some of their independence, leading them to cut you out even if they actually haven’t, and destroying your chances of convincing them to put you back into their will.
As a rule of thumb, only bring a guardianship proceeding if you actually think it will benefit your elderly relative, not for your own benefit of proving that they’re incapacitated, and always communicate with your elderly relative and convey to them that you are brining the proceeding out of love because you care about their well being.