Contesting a parent's will
May 1, 2000: 8:05 a.m. ET

You and your Dad loved each other. So why did he short-change you in his will?
By Staff Writer Jeanne Sahadi
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NEW YORK (CNNfn) - You're not one to fight over money, but when you found out your Dad left the bulk of his estate to his nurse, you knew something was wrong.

After all, your parents told you they would divide their assets equally among you and your siblings. And after your mother died, your Dad named you all as beneficiaries in his will.

Of course, parents have a right to change their minds -- and their wills.

When it comes to making a claim on a person's estate, generally speaking "the only family member who has any rights is a spouse. Children have no rights at all," said Donald Novick, a partner at the law firm Schwartzapfel, Novick, Truhowsky & Marcus in Huntington, N.Y.

But since the law views children as "interested parties" - - those who are either named in a will or who would share in the deceased person's estate if there was no will -- you do have the right to contest the document if you suspect it is invalid.

When a will is invalid

Keep in mind, "invalid" doesn't mean insulting or mean-spirited or just plain stupid in your opinion. It means one or all of the following:

  • The will was not executed properly. In most states, you must have two witnesses present at the signing and both must know they are witnessing the execution of a will.
  • Your parent was mentally incompetent at the time of the signing. To prove this, you would need to provide medical records and ask people who knew your father to testify about his state of mind.
  • Someone exercised undue influence over your parent. If your ailing father's nurse threatened to withhold care unless she was made a beneficiary, or your sister with whom he lived persistently bad-mouthed everyone else in the family, that could be construed as undue influence or duress.
  • Your parent fell prey to fraud. Your father may have been told he was signing a document other than his will.

Making your case

To prove a will is invalid, there are a number of steps you must take.

First, since most states require that "interested parties" be notified of the deceased person's will, you should get a notice indicating a deadline by which you have to notify the court if you want to contest.

graphic"You must respond to the notice. Don't put it off," said Roger Levine of Levine & Furman Estate Planning Attorneys in East Brunswick, N.J.

And be sure to put your response in writing. A phone call isn't sufficient.

Then you must pull your case together. The burden is on you to prove the will does not reflect your parent's true intentions.

"It's really an investigation," Levine said.

That means digging up any prior wills your father made naming you as a beneficiary, finding his old lawyer(s) as well as witnesses who knew him, and any hard evidence that shows the final will should be made null and void.

Your chances of winning will be better if the last will was made within a few months or weeks of your father's death. "If the will is 12 years old, you're going to have trouble," Levine said.

Keep in mind, too, that "undue influence is very difficult to prove," Novick said. There's usually only circumstantial evidence to prove your parent was somehow coerced.

Nevertheless, Novick had a case in which a woman successfully contested her father's will when it became clear that her brother, after suggesting the father move to a nursing home near him, pressured the man into signing a new will within a week of moving. The court reinstated the father's prior will, which provided for a more equitable distribution of assets.

Check the bank account

If you suspect your parent was coerced into signing a will, you may discover other suspicious financial transactions in the shadows.

In many states, your bank account, securities or securities account can be held in joint name or passed to a designated beneficiary upon your death. While this money is part of your taxable estate, it is not part of your will, Levine said.

Proving your father never intended to leave all $200,000 in his securities account to your brother can be tough. But increasingly, judges will take a closer look at relationships that are out of the ordinary. So if your brother exercised complete control over your father as his caretaker, that might receive careful consideration.

A little prevention ...

If you want to contest a will, be prepared to spend some of that inheritance you're fighting for.

"There's going to be a significant fee," Levine said, since the case is likely to go to trial and may take up to a couple of years. He cited one instance in which litigation costs alone would have cost one client between $30,000 and $50,000.

graphicIf you are a parent and want to prevent family unrest after you die, Levine suggests you videotape a reading of your will, as well as a question-and-answer session with your lawyer, to address potentially sore subjects, like why you are leaving more money to one child than another.

And if you are someone who is getting less than you think you deserve, you may feel your parent's decision is unfair. But if it's sound, it will stand.

"You may have the judge's sympathy, but the law is the law," Levine said. "Nobody is required to leave anybody anything." Back to top


Levine & Furman

Schwartzapfel, Novick, Truhowsky & Marcus P.C.

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