IfI was not named inmy mother’sWill even though I am her second birth child out of 4, can I contest it?

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IfI was not named inmy mother’sWill even though I am her second birth child out of 4, can I contest it?

If I do contest her Will, what are my chances of getting my equal share? What will this entail?

Asked on September 25, 2011 under Estate Planning, Texas

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The fact is that a child has no automatic rights of inheritance. They can be left out of a Will. Although simply not naming a child in a Will may not succeed in disinheriting them in some states. The reasoning is that the child could argue that it was an oversight by the parent. Accordingly, if a child is disinherited it is sometimes best to mention them in the Will and specifically cite that they are not being left a bequest; no reason need be given (again state law may mandate this).

Therefore, whether or not you can contest the Will based on the fact that you weren't mentioned in it will depend on state law. Additionally, you might also be able to contest on other grounds such as undue influence, fraud, incompetency or the like. However the proving such matters requires money and time; not to mention that the standard of proof required to prevail in such cases is high. Courts disfavor overruling a decedent's express written intent.


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