When someone dies with a will, the contents of the will can sometimes cause major surprises. You may be shocked to find not only that you were left out of a will but that perhaps other people were included who you feel should not have been.
You do have legal options when it comes to fighting the contents of a will. However, before deciding if you want to fight to receive your share of the estate, you should make sure it is the right decision.
What you must prove in court
Although you might be certain that you were left out of the will by mistake, proving this in court is a challenge. You typically must show one of the following:
- Diminished capacity
Coercion means that you must prove that someone coerced your family member or loved one into changing the terms of their will. The coercion must be so strong that they had no control over changing the terms due to threat or force.
Diminished mental capacity means that your family member or loved one did not have the necessary mental state to know what they were doing when they were drafting the terms of their will.
To prove fraud, you must show that the copy of the will that leaves you out is a forged copy and not the original will.
It is generally assumed that a will is valid and the person making it did so with the appropriate intent and of their own free will. Therefore, showing any of these three things can be extremely difficult.
Think carefully about your options
You should weigh the benefits and drawbacks of challenging the will. Consider what you expected to hope for or get from it and compare that with the likely time, effort and cost that will go into challenging the will.
Before deciding, it can help to talk with an experienced estate planning attorney. They can provide you with advice on your situation and discuss your chance of success.