If a person dies from alcoholism and has written one of two of his children out of his will for not talking to him, can the executor or probate system change the distribution of the money or can the will be contested? If so, for how long after the death?
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If a person dies from alcoholism and has written one of two of his children out of his will for not talking to him, can the executor or probate system change the distribution of the money or can the will be contested? If so, for how long after the death?
This person died from alcoholism. Many interventions were had with him without success. The last one, everyone decided that if he didn’t go to treatment, they would no longer communicate with him in any way. One of the children stuck to this promise, no one else did. The one child who stuck to the promise, got cut out of the will.
Asked on July 28, 2019 under Estate Planning, Minnesota
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 4 years ago | Contributor
1) The executor or probate system can not change the distribution of the money: they have to honor the will as written unless it is successfully challenged.
2) The child written out of the will can try to challenge the will (file a challenge in probate court within one year of death), but there must be evidence to support a valid ground to invalidate the will: the fact that a child was written out is NOT by itself grounds for a challenge. Possible grounds are:
a) There is medical evidence the decedent was not mentally competent when he made the will.
b) There is evidence that someone used illegal threats or pressure (of violence; of blackmail) to make the decedent create this will.
c) There is evidence that someone upon whom the decedent was dependent (e.g. a caregiver, if he was more or less housebound) used their position of influence over him to get the will made.
d) You show the will is a forgery, was not properly signed by the decedent, not properly witnessed, etc.
Othewise, the will will stand.
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