What Can You Do if You're Left Out of a Will?

Discovering you’re disinherited or left out of a family member’s will can be devastating, especially if that action comes as a surprise. There are times when the terms of the will or the circumstances surrounding its execution raise concern or suspicion, calling the will’s validity into question.

What can you do if you’re left out of a will?

An interested person may file an objection in writing with the court if he or she believes grounds exist to have the will declared invalid. This is a type of lawsuit called a will contest.

Reasons for challenging a will

The person who wrote and executed a will (called a testator) may leave his or her assets to any individuals or entities he or she selects. There are many reasons a person could be left out of a will, many of which are lawful. However, there may be times when challenging a will is appropriate. Below are the legal reasons which may lead to a will contest.

Testamentary Capacity

One important basis upon which to contest a will in Michigan is lack of testamentary capacity, which is the legal term used to describe a person’s legal and mental ability to make or alter a will.

Testamentary capacity requires that the testator understand the following:

• The nature and effect of making a will;
• That the act of executing a will results in the disposition of property after death; and
• The nature of his or her property, and who the close family members are that would normally inherit the property.

The testator must be a legal adult and have sufficient mental capacity for executing a will at the time of signing. Incapacity might be shown by symptoms of mental illness, the effects of medication or drug use, memory loss, or similar evidence.

Undue Influence

Another basis for contesting a will is undue influence, meaning the testator experienced coercive pressure from a person of trust. The pressure is so extreme that the testator effectively lost his or her own free will and drafted the will in a way he or she otherwise would not have, such as disinheriting a loved one in favor of an unexpected or surprising choice of beneficiary, usually the person exerting the undue influence.

Additional factors

Michigan law also allows residents to contest a will based on the following additional factors:

  • Improper execution, such as having not met form, signature, and witnessing requirements, or the requirements of a valid holographic (handwritten) will;
  • Fraud;
  • Duress;
  • Forgery;
  • Lack of testamentary intention; and
  • Revocation such as by physical destruction or execution of a later will that replaces the earlier one.

Anyone who is considering whether a will should be contested or who faces a contest over a will should speak with an experienced estate litigation attorney.

Help is available

The estate planning attorneys at O’Reilly Rancilio are ready to assist clients with both sides of will contests and other probate litigation. For more information, please call 586-726-1000 or visit our website.

Categories: Estate Planning