Were you left out of a loved one’s will? You have options.

| Feb 18, 2021 | Trust And Probate Litigation

The death of a loved one is one of the most brutal experiences we can go through in life. It is made so much worse when you unexpectedly learn that you were not provided for in their will.

If you fully expected your loved one to remember you in their will, but they left you out, you could have options. If you suspect that the reason you were not included in the will was due to foul play or dishonesty on the part of someone close to your loved one, you might consider bringing a challenge to the validity of the will.

Before you take this course of action, it’s important to evaluate whether it makes financial sense. Make sure that the amount you might get if you win is more than the amount you’ll have to pay your attorney. Otherwise, it probably won’t be worth doing.

You can challenge the validity of the will

In order to challenge the validity of someone’s will in court, you need something called “standing.” Standing means that you have a special relationship to, or interest in, the will that makes it appropriate for you to be able to challenge its legitimacy.

Most of the time, the people who have standing to challenge a will are the spouse, children, parents or siblings of the testator (the person who created the will). If you have a different relationship with the testator, you might still be able to convince the court that you should have standing to contest the will as well.

If you want to resort to a lawsuit, there are a couple of strategies your attorney might use to plead the case that the court should declare you entitled to a share of the estate. For example, they might argue that the will is invalid because the testator lacked testamentary capacity (meaning that they weren’t sufficiently sound of mind to understand what they were doing when they created the will).

Alternately, if the facts support it, they could argue that there was undue influence on the testator. That means that someone put inappropriate pressure – either through threats or manipulation – on your loved one to craft their will in a certain way.

If the will was written before you came into the family, you may be able to get a share

A lawsuit might not be your cup of tea, especially since your family will already be reeling from the loss of your loved one. Luckily, if the testator is your parent, you might not have to resort to a lawsuit at all.

Under California law, there are certain rebuttable presumptions in play concerning the omitted children of a testator. A rebuttable presumption is something that the court will assume is true unless someone provides sufficient evidence to prove that it is false.

If you entered into the family (through birth or adoption) after the testator created their will, there is a rebuttable presumption that the omission of your name from the will was involuntary, and that the testator meant for you to have a share. That means that, unless someone else can prove that the testator intentionally left you out, you could get a share.

Just because you were not specifically named in your loved one’s will doesn’t mean that you don’t stand to inherit anything. If the circumstances are right, you could have good grounds for a lawsuit, or you could get a share without even having to resort to a lawsuit.