If a parent leaves everything to one child, omitting the other children from the will, such omission may be accidental, intentional, or obtained with undue influence or some other ground. Should you contest this will? An estates litigation attorney can evaluate your case to see whether your will contest is worth pursuing.
When you are a child and your parent leaves everything to another child, this can be really disappointing, disheartening, and very hurtful. Still, it’s important to know whether it’s worth it, cost-wise, to pursue a will contest or not.
To know whether you should pursue a will contest, you should evaluate how much of the estate you will get if it is disregarded and the costs of the will contest. To know more about the costs of a will contest, you can click here. The cost of your will contest can range between four to five figures and will depend on the stage in which your claim is concluded: out of court, during the initial probe, discovery, or after trial.
If you were accidentally omitted as an after-born child, you may be able to receive something depending on the provisions your parents made on their children. The rules are provided in EPTL § 5-3.2:
- 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.
If you are not an after-born child but intentionally omitted from the will, your options are more limited. Your way to challenge the will is to say it was improperly executed or a product of fraud, forgery, or undue influence.
Some examples are as follows:
The will was not executed in accordance with state law
In New York, 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 with a self-proving affidavit executed by the witnesses, the witnesses still need to testify to prove the will.
Your parent 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.
In New York, the initial probe only covers review of medical records ranging from o three years prior to the date of the will and two years thereafter, or from the date of decedent’s death, whichever is the shorter period.
Your parent 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.
A combination of two or more grounds is usually used when alleging that the will is invalid (i.e. undue influence and fraud).
A will contest lawyer will be able to guide you throughout the entire legal process starting from the evaluation of your case, contesting the will, and negotiating a settlement.
If you’d like to take action when your parent left everything to one 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 firstname.lastname@example.org.