My mother passed away and only listed one of her children on her will

Recently on our forum we had a user ask, "If my mother passed away and only listed one of her children on her will do any of the other children have a legal right to the estate?"

A will is the legal means allowed for the "testator" or will maker to outline how they would like their property and assets distributed after their death. A parent is under no obligation to ensure equitable distribution of their property of assets to each child. In fact, a parent may have various reasons for excluding children. Unfortunately, with this in mind, there is limited recourse to ensure equal distribution to all siblings without legally contesting the will (except in Louisiana where children have the right to inherit by law).

The first step before contesting the will is to talk to your sister. If you are on good terms and you can convince her that your mother did not intend to disinherit everyone she may be willing to divide the property evenly between all siblings. If this does not work you will have to resort to legal means to challenge the distribution of assets by contesting the will.

How do you contest a will?

The goal of contesting your parent's will is to prove that your parent did not purposely intend to disinherit you and your siblings. First, you will need to file a notice to contest the will in the appropriate county courthouse. You will also need to provide evidence to the court that the will is either not valid or your parent did not intend to disinherit you and your siblings.

1. Was the will properly signed?

The easiest way to prove a will is not valid is to prove it was not signed according to state laws. For example, in some states the will must be signed by the Testator in the presence and hearing of two witnesses.

2. Did the testator have the capacity to create a will?

Unfortunately, the bar for proving someone has the legal capacity to sign a will is not very high. To prove deficiency you will have to prove the testator did not know the value of their assets, they did not know who should logically inherit their property and assets, and they did not understand the legal ramifications for signing a will.

3. Was the testator unduly influenced to sign the will?

It's not unusual for elderly parents to be negatively influenced by others. If you can prove your sister put extreme pressure on your mother to give her all of the property and your mother was under severe duress you may successfully contest the will. Unfortunately, if your sister only nagged or threatened your mother this may not be enough. She may also have had to perform other actions such as paying to have the will constructed, isolating your mother from other family members and holding the original will in safekeeping. You may, however, be able to convince the court your mother was unduly influenced if your sister threatened bodily harm, used coercion or physical restrained your mother.

Finally, you may also successfully contest the will if you can prove it was procured by fraud and your mother was tricked into signing it or if you can prove your mother did not intend to disinherit a child and the will did not explicitly do so. For example, if a will was made before a child was born a probate court may conclude that the "after born" omitted child is entitled to a share even if they are not explicitly listed on the will.

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