Individuals who suspect they are being disinherited under the Last Will and Testament of another individual, such as a parent, often want to know what, if anything, they can do about it during the parent’s lifetime. They often believe they are being improperly excluded as a beneficiary because of the undue influence, duress, or even outright fraud exercised by another person. This scenario often includes the person making a change to their Will showing signs of declining mental capacity.
It is important to note that a change in a Will leading to a disinheritance may be entirely legitimate. There are multiple legitimate reasons why a person who is of sound mind may disinherit a natural heir, such as a child. These reasons often include an estrangement, a perceived lack of care or concern, or even abusive behavior. On the other hand, a parent may feel a child may not need an inheritance due to their own financial success or prior gifts made by the parent, or the parent may want to reward another child who has been the parent’s primary caregiver.
In those cases where the feeling is that the suspected disinheritance may be the result of undue influence, duress, fraud and/or mental incapacity what can be done? Is there anything the child can do during the parent’s lifetime in anticipation of a Will contest once the parent dies?
in New York, a Will cannot be challenged in court during the lifetime of the maker of the Will. However, in a guardianship proceeding, a trust and deed can be challenged and potentially voided in court. One can easily check the public records for the last deed of record to see if there has been a change.
In these situations, I urge the family member to continue to try to maintain close contact with the party they fear is disinheriting them. Call, send birthday cards, and try to visit and document everything since the party or parties being favored may very well argue that the parent was disillusioned with the disinherited party’s lack of concern. If the person is denied access to visit, they may wish to call the police (and ask for a wellness check) and Adult Protective Services to document the lack of access. Visitation rights could be obtained by court order in a guardianship proceeding which could also potentially bring to light, and stop, any mishandling of the parent’s funds.
It’s also important for the individual to note information which may be helpful in discovery in a future Will contest. Who are the doctors, what are the assets, and who is the parent in regular contact with who may serve as a witness in a future Will contest?
The attorneys at Kurre Schneps provide counsel to people who suspect they are being improperly disinherited as well as those who legitimately wish to disinherit someone and seek to minimize the risk of a Will contest. Click here to schedule a consultation if you wish to set up your estate plan to disinherit a natural heir or if you suspect you are being improperly disinherited.
