Dad left us out of the will -- Do we have recourse?

Lynn Brenner | Family Finance

1:51 PM EST, February 22, 2008

What happens when a father's will, drawn up in New York, does not mention his two legitimate sons? His spouse predeceased him. What steps must be taken to address this issue before and after probate begins?

C.R., via e-mail

If he's still alive, his sons can try to persuade him to change his mind. If he's deceased, they can challenge his will. But the fact is, their father isn't legally required to leave them anything.

When you die without a will in New York State, your assets are divided between your surviving spouse and your children -- all of them, regardless of their legitimacy. But if you do have a will, there's no law against using it to disinherit your kids.

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The decedent's children are legally entitled to contest his will before it's probated -- in other words, before the court affirms that it's a valid will. But to succeed in overturning it, they must prove that the will was improperly executed (Dad's signature was forged, for example) or that he lacked the mental capacity to sign it -- in other words, he didn't understand what he was doing; or that he was subjected to "undue influence" -- i.e., he signed it under duress.

None of that is easy to prove. "Improper execution" typically requires a conspiracy between a lawyer and the two witnesses to the signature. "Lack of capacity"? The fact is, it doesn't take a lot of mental capacity to sign a will; all you really have to understand is what you have to leave and who your family and friends are.

Also, there's a difference between ordinary influence, which is perfectly legal, and "undue influence," which isn't. For example, it's not "undue influence" for Dad's new trophy wife to talk him into leaving his money to her instead of to his grown kids on the grounds that she loves him more and makes him happier, and besides, they've treated her disrespectfully.

"Undue influence" is when Dad's sole caregiver threatens to abandon him if he doesn't sign a will that leaves everything to her; or if she turns him against his children by inventing monstrous lies about them, or concealing their phone calls from him and denying them admission when they come to visit him.

In any event, you can't contest a will until the person who signed it is dead. (Judging by mail to this column, not everyone realizes this.) If your father is alive, and you think he intends to disinherit you, you have two options: Address your estrangement and attempt a reconciliation while you still have the chance. (You should do this, anyway; after his death, you'll be very glad you did, even if he doesn't leave you a dime.) Or you can challenge his capacity to make financial decisions and ask a court to appoint a guardian to make them for him.

You should only consider taking this step if you genuinely believe -- and can prove -- that he is incompetent.

Remember, the fact that he doesn't want to leave you his money is not evidence of incompetence. Judges typically establish guardianships for people who cannot manage their finances because they're suffering from a debilitating illness or injury. If the court decides you had no substantive reason for filing the suit, it won't just reject your argument -- it will also stick you with all the legal costs.