Russ Cook & Associates, PC

Can I contest a will if the decedent excluded me?

The death of a loved one can trigger painful emotions and complicated interactions with family members, especially in situations of estrangement or strained relationships. This can certainly be the case if your loved one excluded you from his or her will.

A testator (the person making a will) has the right to make his or her decisions about asset distribution, including disinheritance. However, there may be circumstances under which a disinherited party may challenge that decision by contesting a will.

Contesting the will

During the probate process, interested parties may contest the validity of the will if they have standing to do so. This means that you would be entitled to property if the will was set aside. 

Parties can contest a will based on claims that it is invalid or the result of undue influence. For instance, challenges might occur if there were no witnesses to the signing of the will or it was not notarized. Allegations that the testator was coerced or lacked the mental capacity to sign such a document could also be grounds for challenging a will. 

"Can" vs. "should"

Having legal grounds to contest a will because it excluded you does not necessarily mean you should. Contesting a will can cause or exacerbate familial strain, and it can extend the probate process. 

Before you decide, think about a few important issues.

  • Is it likely that the will did not reflect your loved ones wishes or current circumstances, or was the decision to exclude you from a will intentional, if upsetting?
  • Are there no-contest clauses in place that would eliminate or decrease any gift you do receive if you contest the will without probable cause? 
  • Are the reasons your loved one use to disinherit you no longer valid?

Based on how you answer these questions, you can get a better understanding of whether contesting a will is in your best interests or if it could cause more problems than it solves.

Whatever you ultimately decide to do, it can be wise to consult an attorney before you make any decisions. There could be a lot on the line, and understanding your legal options can help you protect yourself.

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