Recourse If Left Out of Your Parent’s Will

Answer:

As an accomplished Delaware County Estate Planning Lawyer, clients come to me all the time with questions about being left out of their parents will. If you have a situation in which your parents have executed a will and at some point in time they have decided that you are no longer a beneficiary under the will, you do have certain recourses. Ultimately, however, this is dependent upon certain facts associated with the manner in which your mother and/or your father actually executed, signed, or entered into the will.

The first thing we want to look at is:
• Were they operating under what we call ‘capacity’ at the time they executed the will?
• Did they know who they were?
• Did they know who the president was, who were the objects of their bounty was, what assets did they own?
• Did they have the sufficient mental capacity to make an intelligent decision at the time they did this?

If you want to contest the will, you’ll need to question their capacity based on these issues.

As a proficient Delaware County Lawyer, I recommend securing the time frame the will was executed in to question that capacity.

Secure medical information or records to determine whether your parent did or did not suffer from a medical incapacity such as dementia or Alzheimer’s or some other type of mental illness that would have precluded them from making an intelligent decision at the time they executed the will. That is the critical point here, it’s not whether they were unable to do it two weeks before. It’s about whether they had what is called a “lucid moment” at the time they signed the will.

If they did not and they did enter this will without capacity, then you have the opportunity to file what is called a will contest or a petition with the Orphan’s Court in the particular county that controls estates and wills. This will raise the issue before the judge to say, “I believe this will was executed when my parent did not have the capacity to execute a will.”

The court will then listen to your evidence, including witnesses who were present at the time of the execution, or witnesses who know about the person’s medical condition. The court will then hold a hearing. From there, the judge will determine whether you have proven your case as to whether the individual had capacity or did not have capacity.

The second way you can contest this will is to challenge whether someone had undue influence over your parent before they executed or at the time that they executed the will.

This criterion is a little different than at the time they actually signed it. It’s whether someone was influencing them when they had a weakened medical condition that precluded them from actually understanding what they were doing and whether they were being forced or influenced into doing certain things. We have this situation sometimes with healthcare providers who are there every day and with long-lost family members who arrive unexpectedly at the household. They come in and suddenly become your parent’s best friend while you happen to be away in a different state and start influencing that individual to angle the will to their benefit.

In this circumstance, your burden is to show the undue influence and the weakened intellect of your parent at the time they were subject to the influence of this person. You must also show that the person who benefited from the will actually did receive the benefit.

That is also determined by the court through the process of a hearing after evidence is produced. This is somewhat of a short answer, but what you’re looking for is individuals who have influenced your parents or had confidential access to your parents to influence them — were they, for instance, a power of attorney, an agent, or somebody who had access to gain some influence over them to change their mind against their will because of their weakened intellect? You contest the will by addressing these issues.

This educational blog was brought to you by experienced Estate Planning Attorney Walter J. Timby. Our law firm proudly represents clients throughout Delaware County, as well as Pennsylvania, the greater Philadelphia area, and New Jersey.

If you have any questions about the recourse if you were left out of you parents will, please contact our Delaware County Estate Planning Lawyers for a free case evaluation. Let our skills work for you.