Contesting a Will – (Q & A)

Jan 2017


Dear Rick:

I have a problem that I hope you can help me with. Last year after an extended illness, my older brother passed away. At the time of his death he was divorced. My brother was married three different times. He had two adult children at the time of his death, but he had no relationship with them. My brother had always told me that upon his death I would inherit everything. However, at the time of his death I was informed by his attorney that the bulk of his estate went to his two children along with his first wife. My inheritance was about 15 percent of the estate. My friends tell me that since I was the one who helped my brother through his illness that I should be entitled to more. I have met with two attorneys on this topic. The first attorney told me that I had no case and all I would be doing is putting good money after bad. He said that since my brother’s will was done about two years ago, before he became ill, there would be very little that I can contest. I met with another attorney who said it is possible to sue and he estimated that it would cost between $15,000 and $20,000 to pursue the lawsuit. He wanted a $10,000 retainer. My question is do you think I should sue? It’s not necessarily about the money that I would inherit but rather, the principle. What do you think?


Dear M.M.C.:
First, I am sorry for the loss of your brother. I can only imagine how difficult it is when a sibling passes.

In reviewing your situation, I agree with what the first attorney told you. From the information you have provided me I do not believe you have a case. Yes, it probably was unfair how your brother chose to divide his estate; however, it’s not an issue of fairness, it’s an issue of law. I believe if you pursued the case in court you would lose and it would end up costing you a substantial amount of money.

In most will contest situations, the issue is whether or not the person who executed the will had the legal capacity to do so. For example, if a beneficiary created an atmosphere of intimidation and pressure where the individual was not of clear mind when they did their will, that potentially could create an issue where the will could be overturned. Another example is if someone was heavily medicated, their state of mind could be contested and potentially, a will could be overturned. However, in the case at hand there are no issues that deal with the mental capacity of your brother. The bottom line, your brother was of clear mind when he had his will done and that is going to be the controlling issue.

When it comes to our deaths, we generally are free to leave our money and property to whomever we choose. There is some protection in the law for spouses but that is about it. In fact, it is relatively easy to disinherit a child. In the case at hand, the issue seems to be that the brother said that his sister was going to inherit money and there seems to be a fairness issue. Unfortunately, in the law these things do not hold up. Just because someone tells you that you will inherit upon their death doesn’t create a legal obligation; there needs to be significantly more. The fact that she helped her brother during his illness, once again, did not create a legal obligation and after reading her letter I have no doubt that the reason she did assist her brother was not because she expected some financial remuneration but rather, because of love and affection for her brother.

Contesting wills is not easy and can be very expensive and take a toll on a family. However, there are situations where a will contest is appropriate. In those situations, my advice is to make sure you deal with an attorney who specializes in these areas. Will contests are specialized cases and having someone who is familiar with the court rules can be extremely valuable.

Good luck!