What can be done if I have a friend whose mother just passed away and removed my friend from her Will?

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What can be done if I have a friend whose mother just passed away and removed my friend from her Will?

They have had a rocky relationship and have not talked for the last 3 years. When her Will was presented to the executor (younger sibling) my friend was not mentioned in it but her siblings were. Her mom suffered from brain cancer, so her passing was not a surprise. What was a surprise is that the mom changed her Will approximately 1 year ago and removed my friend, according to the attorney. In talking with the executor, she says that the mom was not in sound mind when she made the last change to the will and that my friend should challenge the latest will. When she made the last change; she was living with the executor and was confused. What can my friend do?

Asked on January 31, 2016 under Estate Planning, Oregon

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Your friend can do what the executor suggested: she can bring a legal challenge to the will, in surrogates or probate court, on the basis of lack of mental capacity: a will is only valid if the testator (person making the will) was mentally competent when the will was made. To have a chance of prevailing, your friend would likely need some medical testimony or other strong evidence of lack of capacity; because a case like this is not a simple or easy one to make out, your friend would also be well-advised to retain an attorney to help her. Your friend needs to bear in mind that if she can't prove incompetence at the time the will was made, the will will stand; a parent has the right to disinherit a child, and the history of a rock relationship  and not speaking for years will weigh against your friend, since that will make the decision to disinherit seem more logical and reasonable (i.e. the product of a sound mind).


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