Left Out in the Cold? My mom died and left me out of the Will–What can I do about it?

What can you do when you find yourself left out of a parent’s Will? That all depends on the circumstances surrounding the creation of the Will in the first place. For starters, in California children do not have a right to inherit any property from a parent. In other words, a parent can disinherit a child, leaving them nothing. Minor children can still enforce child support orders, or obtain a child support order or family allowance from the court where necessary, but those are support obligations for minor children not inheritance rights. There is no absolute right for a child to inherit property.

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So if you do not have a right to inherit property from a parent, and you are left out of a Will, what do you do? There is a chance you may be able to take some action. You can either challenge your parent’s Will or you may be classified as an “omitted child.”

  1. The Challenge: you can challenge a parent’s Will if you have legal grounds to do so. The most often used grounds for setting aside a Will are (1) lack of capacity, and (2) undue influence.

For lack of capacity you must prove that your parent was not of “sound mind.” In California, “sound mind” for creation of a Will means that a person must understand (1) the nature of his property, (2) the nature of his relations (i.e., who his children are), and (3) the general nature of his assets (see California Probate Code section 6100.5). This is referred to as testamentary capacity. It is up to you to find the necessary evidence to prove lack of capacity if you want to overturn a Will. The law presumes that all people creating Wills have capacity—no matter how incapacitated they may be. To challenge a Will, you have the burden to overcome this presumption and prove a lack of capacity.

Furthermore, to prove lack of capacity, you must have medical evidence of a mental defect. For example, a person with moderate to severe dementia would have a mental defect that could prevent him from understanding the nature of his property. If so, then lack of capacity can be established and the Will can be set aside.

If you are successful in setting aside a Will based on lack of capacity, the question then becomes who receives the assets from the estate? If there is a prior Will, then the prior Will governs the estate and the assets will be distributed under the terms of the prior Will. If there is no prior Will, then the estate will pass under California intestate laws—most likely passing equally to the children.

For undue influence you must prove (1) that the person creating the will was susceptible to undue influence due to things like age, mental condition, illness, etc.; (2) the undue influencer (the person doing the influencing) was in a position of authority (or apparent authority) over the victim, (3) the undue influencer used actions and tactics to carry out the undue influence (such as isolation, controlling medication, etc.), and (4) the terms of the Will or Trust are unfair.

As with lack of capacity, undue influence requires medical evidence of a mental condition that would make the victim susceptible to undue influence. But being susceptible to undue influence is different from lack of capacity. Susceptibility to undue influence is a lower mental standard. In other words, a person could have testamentary capacity, but still be susceptible to undue influence.

If you can meet one of these legal standards, then you may have a chance to overturn a parent’s Will. If, however, you cannot meet one of these standards, then you are simply out of luck. In other words, you cannot overturn a parent’s Will just because you don’t like its terms.

  1. The Omission: if you fall into a narrow category of people who were born AFTER a Will was created, then you qualify as an omitted child. As an omitted child, you are entitled to your intestate share of the estate regardless of what the Will states. There are a few exceptions, however, such as a Will that references an upcoming birth of a child, but states the child is specifically disinherited. But short of that, anyone born after a Will is created is considered omitted by California law, and is therefore entitled to a share of the estate. By the way, the omitted child rules also apply to a child born AFTER a Trust is created.

You are also considered an omitted child if you can prove that a parent left you out of the Will because the parent was under the mistaken belief that you were deceased. That rarely happens, and can be difficult to prove in any event, but if you fall into that category than you too will receive your intestate share of the estate regardless of the Will’s terms.

In my seventeen-year career I have only had two cases (out of hundreds and hundreds of cases) that included an omitted child. It is a very rare occurrence, but if you meet the conditions then you can easily obtain your share of a parent’s estate.