Family relationships are often complex and problems or issues involving money and property may further complicate things. This is especially true in the case of family inheritance. Circumstances may arise where a child finds themselves in a position where they appear to be disinherited. In that situation, legal rights of a disinherited child come into play.
Disinheritance of a child is a thorny subject in the context of family relations. Once you reach this point, it is almost unavoidable and necessary for you to assert and protect your interests in court. Thus, as a disinherited child, it is very important for you to know your legal rights.
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Who is a disinherited child?
A disinherited child must be a legal child of a parent, either natural or adopted. A natural child is a biological child, who is either acknowledged by the parent, proven to be the child of a parent through scientific (DNA) evidence or a child born within a marriage.
If your parent has died without acknowledging paternity, you need to prove your filiation via scientific evidence.
Once you’ve established that you are the child of your parent, then you can check whether you have been intentionally or accidentally disinherited.
Accidental vs. intentional disinheritance
You can be accidentally disinherited if you were born after the execution of the will. This means that your parent did not intentionally disinherit you. It just so happened that your parent executed the will before you were born and was not able to revise the will after you were born. For this reason, the will was silent about your inheritance. In this sense, you are called an after-born child.
If you were accidentally and not intentionally omitted from the will as an after-born child, EPTL § 5-3.2 provides for the rules on what an after-born child will receive:
- If your parent has one or more children and no provision was made for any of the children in the will, the after-born child does not receive anything.
- If your parent left something for one or more children in the will, the after-born child receives a share limited or equal to what the other children received.
- If your parent did not have any other children except for the after-born child, the after-born child receives a portion of the parent’s estate as if the parent died intestate.
The share of the after-born child is taken from the other children’s share or the other testamentary beneficiaries’ share, whose interests will be abated. After-known children (children who were born before the execution of the will but only known about after) are not considered after-born children.
You are intentionally disinherited if your parent’s will expressly states that you are disinherited or you have been completely omitted from the will. In New York, children (unlike spouses) can be disinherited.
Reasons for disinheritance
There are many reasons behind why a parent would decide to disinherit a child. Sometimes the disinheritance might have something to do with the overall relationship of the child with the parent. The parent, for example, might have felt estranged from the child and vice versa.
Other times, it can be more complicated than that and may involve situations wherein the parent was unduly influenced or defrauded into disinheriting the child in a will.
Whatever the reason is, a child who has been disinherited by a parent has certain legal rights that may be enforced in court in order to protect their own interests in the estate.
Right of a disinherited child to explore bringing a will contest
Before engaging in full-blown litigation, you might also want to gather the necessary information first before contesting the will. This is a pre-litigation probe of the circumstances surrounding the execution of the will. This process is authorized under Section 1404 of the Surrogate’s Court Procedure Act (SCPA §1404).
Under the said law, a disinherited child who is looking to contest a will has the legal right to:
- examine the witnesses to the will or the attorney who drafted it, in the form of depositions;
- request for your parent’s financial or medical records as part of the discovery process for a period limited from 3 years prior to the execution of the will to 2 years after the execution of the will or until the death of your parent, whichever period is shorter.
Note that the time when you conduct your §1404 examination is also important as this will determine who would pay for the costs of the deposition. Generally, you should seek to conduct your deposition before formal objections are filed against the will so that the estate will have to bear the costs of the examination. The timing of your examination under SCPA §1404 is something that you should consult with an experienced will contest lawyer in New York.
Right of a disinherited child to contest a will
Unlike the surviving spouse who has the right to an “elective share” of whichever is higher between $50,000 or one-third of the estate, a child once disinherited is entitled to nothing from the decedent.
As such, the foremost legal right of a disinherited child is to contest the will itself. There are many grounds to contest a will such as fraud, forgery, undue influence, duress, and the lack of mental capacity of the parent executing the will. What specific grounds to raise in a will contest is something that a New York estate lawyer experienced in contesting wills would definitely know.
Examples of these grounds are illustrated below:
The will was not executed in accordance with New York laws
If the will was not executed under the supervision of an attorney, there is no presumption that the will was properly executed. Contesting the will may be easier.
If the will is not accompanied by a self-proving affidavit executed by the witnesses, the witnesses still need to testify to prove the will.
The decedent lacked testamentary capacity
Testamentary capacity requires that a person be of sound mind and at least 18 years of age. The lack of testamentary capacity is usually bolstered by medical records showing lack of mental capacity on the part of the testator. These medical records would show whether the testator was taking mind-altering pharmaceuticals or suffering from dementia, Alzheimer’s, schizophrenia, or other similar illnesses or disorders.
The review of medical records is limited to three years prior to the date of the will and two years thereafter, or from the date of the decedent’s death, whichever is the shorter period. This 3/2 rule is found in Rule 207.27, Uniform Surrogate Court’s Rules.
The decedent was subjected to undue influence in the execution of the will
Undue influence happens when another person exerts improper influence upon your parent, amounting to moral coercion and convincing your parent to leave a substantial part of the estate to him. This is the often-used ground for contesting a will.
The will is a forgery
Forgery occurs when the signature in the will is not your parent’s signature. It can be proven by handwriting experts who can compare signatures and provide expert testimony.
The will was procured through fraud
The will is procured through fraud either by way of execution or by inducement. It is fraud by execution when a person asks your parent to sign a document, and your parent signs thinking the document was something other than his will. There is fraud by inducement when a false misrepresentation is made upon your parent, making your parent change the distribution of his estate because of this misrepresentation. For example, when someone tells your parent that you have died and because of this statement, your parent did not leave anything for you in the will, there is fraud by inducement.
Contesting a will
If you believe that you were unfairly or fraudulently disinherited in your parent’s will, you may be entitled to contest the will under New York law. Contesting a will is an intricate legal affair that may require the assistance of an experienced New York lawyer specializing in will contests.
A New York will contest lawyer will be able to guide you throughout the entire legal process starting from the evaluation of your case, arranging a settlement, conducting a §1404 examination, and to contesting the will itself.
If you wish to protect, assert, and know more about your legal rights as a disinherited child, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at [email protected].