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Disinherited? How can I claim my share of the estate?

Perhaps an elderly grandparent or even your own mother or father recently passed away. When that family member died, you may have expected to inherit part of the estate. You may have felt surprised and disappointed to learn that your relative did not include you in the will.

Was it an oversight? Was it a mistake? Your mind may entertain dozens of reasons why the will did not mention you. If you were counting on an inheritance that didn't come through, you may even consider contesting the will, but how do you even begin?

What makes a will valid?

Each state has specific laws concerning the validity of wills. For the most part, if a will exists, the court begins with the assumption that the will represents the true wishes of the deceased. In other words, proving that the will is not valid may be a challenge requiring some strong evidence. In fact, there are only four paths to legally dispute a will, including:

  • The signing of the will did not follow state laws: In New York and most other states, two people must witness the signing of a will. Even if your family member signed the will in a lawyer's office, that doesn't necessarily mean they observed all state laws.
  • Someone coerced your family member into signing the will: This challenge will require you to prove that your family member felt so much pressure that he or she had no choice but to sign the will.
  • Someone tricked your family member into signing the will: If someone convinced your family member that the document he or she was signing was something other than a will, this is fraud. The court will likely question any witnesses, since the law requires at least two to make a will valid.
  • Your family member did not have the mental capacity to sign a will: Your family member must have had testamentary capacity at the time he or she signed the will.

Testamentary capacity is a very low standard. It requires only that your family member understood that he or she was signing a will, the nature of the assets in the will and who will benefit from the will. Such capacity need only be present at the time of the signing, so even if your family member suffered from dementia, the court may rule the will valid if witnesses attest that your loved one had testamentary capacity when executing the will.

Contesting a will is difficult and stressful, so you should more than likely base the decision to follow through with this legal process on more than simple disappointment. Seeking answers to your questions from a legal professional may be a good first step.

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