No one ever said that life was fair. Sometimes that point is driven home to grieving family members when they discover that they have been left out of a loved one’s will.
Learning that you have been disinherited or overlooked as a beneficiary can be quite a blow. Having it come at a time when you are already emotionally vulnerable is a double-whammy to absorb. At first, you may feel hurt, but then anger begins to creep in and you wonder if you can legally challenge your loved one’s last will and testament.
Mounting a will challenge
Wills are only able to be challenged in specific circumstances. Then, too, just because you have the grounds to mount a legal challenge doesn’t mean that in every case it will be worthwhile. You could potentially spend more on legal fees than you could ever recover.
But, regardless of the merits of the case, let’s examine whether it’s even possible.
Who can issue a legal challenge?
To legally challenge someone’s will, you must have both a financial and personal stake in the matter, which is legally known as having “standing.”
If you are an heir-at-law of the testator, i.e., a close relative who would have otherwise been entitled to a portion of the testator’s estate but were left out of the will, you have legal standing to contest your family member’s will. In most cases, those with standing are children or grandchildren of the decedent.
But in cases where there are no living direct descendants, more distant relatives may be able to prevail with claims.
The testator may intentionally disinherit relatives
Just because you are a blood relative does not mean that the testator must leave you something. Except in certain cases where a spouse or a dependent may have an interest in the estate, testators are free to dispose of their worldly goods as they see fit.
However, the will-makers must have been in their right minds and not under duress or the coercion of others. Below is an example of a potentially winnable will challenge by a decedent’s relatives.
A man is suffering from age-related dementia and other health problems, so his adult son and daughter — who live at opposite ends of the country away from their father — arrange for 24-hour shifts of caregivers to meet his every need and ensure that he always has company.
He gets very close with the caregiver who sits overnight with him. When sleep eludes him, he and the caregiver share stories about their lives and form a close bond. He learns she is a single mom rearing three kids on her own. Her car is old and always breaking down. She always seems to have a tale of woe to share.
The caregiver frequently mentions how sad it is that his grown children only visit two or three times a year. He grows resentful and even more dependent upon this caregiver. Eventually, he alters his will to strike out his children in place of the third-shift caregiver whom he has only known for a year.
Will it be worth it?
If the testator in question had significant assets, certainly it’s worth challenging the will. If, however, the changes amount to her inheriting a 15-year-old vehicle with a dead battery and bald tires, it might be better to let it pass. Still, for many family members, the injustice alone is enough to spur them to action.