It’s a stinging feeling. To be left out of a will feels like a rebuke from beyond the grave. You’ll need to set aside your emotions and consider your options, which may be limited.
Contested wills are not an easy battle. There are time limits to taking action. An estate planning attorney will be able to advise you on the requirements of your state. Investopedia’s article, “What To Do When You're Left Out Of A Will,” explains that you’ll need to be able to prove outright fraud, diminished mental capacity or coercion to have a will's terms dismissed.
Before making a federal case out of it, cool down for a few days and think things through. If you aren’t a family member and were never named in a previous will, you can’t contest the will. If the deceased talked to you about an inheritance before, write down as much as you can remember and estimate the dollar value (whether in money or possessions). If it was never discussed but was implied, you’ll need to give a high and a low estimate on what you could have reasonably received based on your knowledge of the estate. If this amount doesn’t cover your legal fees, forget it. You may even walk away if it’s twice as much as the retainer because some estate battles cost more in legal fees than the inheritance. Again, consider this carefully.
The person who creates the will has the final word on who is and who is not in the will. If you have reason to believe that the will has changed, maybe because the person was under duress or suffering from diminished mental capacity, you can try to find out the details. You can ask the executor for the current will, any previous versions and a list of assets.
A sharp executor will compare copies of the will and note any significant changes. Therefore, it’s possible that a notice from the executor will be your first signal that you were removed from the will. If you aren’t told before the will goes to probate, you’ll be able to get a copy from the probate court. In addition, you’ll be told how long you have to contest the will. Each state has different rules and time limits, so ask a local estate planning attorney to help you get the copy and file the contest.
To contest the will, you need a valid reason. You need to reasonably prove that the testator lacked the mental capacity to understand what he was doing when the current will was signed, was pressured into changing it, or that the will fails to meet state requirements and isn’t legal.
Your attorney will tell you if you have a winnable case on these grounds. If you don't have grounds, there’s still a chance you can make a claim on the estate. For instance, if you did unpaid work for the testator, you may be able to claim costs. Again, look at the value of the claim versus the costs of moving forward.
With sufficient grounds, your attorney will file a contest against the will with the objective of invalidating the current will and enforcing a previous will that lists you as a beneficiary. If you’ve been left out of several revisions of the will, your chances of winning the dispute will be less because multiple wills must be invalidated. The burden of proof is on you, so be ready for a tough fight.
Instead of a court battle that will deplete your finances and those of the estate in legal costs, your attorney may be able to get the estate to agree to mediation. Mediation may provide a better and faster resolution than a lengthy court battle.
Keep in mind that an estate contest comes with a great deal of emotional stress and could have a big impact on your relationship with family members or friends of the deceased. It is not easy to be left out of a will, but a realistic look at the financial and emotional cost of a battle that you may or may not win should be considered before throwing yourself into an estate contest.
Reference: Investopedia (May 31, 2018) “What To Do When You're Left Out Of A Will”