To those readers who are thinking of disinheriting a child, see an attorney now

Dear Len & Rosie,

My uncle died with a will that was purchased on the Internet by my wife leaving his estate to his two stepchildren, my sister and I. The will was signed at the hospital the night before he had surgery. He was uneducated and barely able to read and write so my wife carefully read the will to him in the presence of two of his close friends and a nurse. He has a son that he has not seen for forty years and intentionally left him out of the will. I was named as the executor of his estate. The son told our probate lawyer that he is going to contest the will. What are the chances that he can break this will and take the entire estate for himself?

Ernest

Dear Ernest,

As the nominated executor named your uncle’s will, you need to file a court petition to admit the will to probate. When you do that, a notice of hearing, together with a copy of the petition, must be mailed to your uncle’s estranged son. This gives your cousin the opportunity to object to the validity of his father’s deathbed will. He may have a case.

There’s a legal concept called “undue influence”. The law recognizes that sometimes it is possible to convince or coerce someone into doing something they do not really want to do. The elements of undue influence are a “confidential relationship”, “active procurement”, and “unjust enrichment”. If your uncle trusted you and your  wife and relied on your help, advice, and support, that is to say, if he confides in you, then a confidential relationship exists. Since your wife bought your uncle’s will on the Internet and brought it to him, she procured its creation. Finally, since you and other relatives are now inheriting the estate when you would not have done so before, it can be said that you have been unjustly enriched by the will.

If your cousin can show all of that, and it looks like he can, then the burden of proof shifts to you to prove in court that your uncle really knew what he was doing when he signed his will, and that his will accurately reflects his wishes as to the distribution of his estate. If your cousin hires a lawyer, objects to the admission of the will in court, and wins, then your uncle’s will shall be thrown out and the court will look to your uncle’s previous will, if he has one. If this will is valid and also disinherits the son, then you may not have to worry about him. He’ll have little interest in throwing out his father’s will if there’s no money in it for him. However, if your uncle has no previous will, then his son will inherit the estate.

This is water under the bridge for you, but the lesson is that you get what you pay for. If your cousin files a will contest, your case would be better if your uncle had an attorney prepare his estate plan, if only because the attorney would have been a neutral witness as to your father’s intentions and his mental capacity. To those readers who are thinking of disinheriting a child, see an attorney now. Waiting until the last minute and signing documents in the hospital the night before surgery is only asking for trouble.

Len & Rosie