Child Not Included in Will – Can They Challenge It?

Depending on the state and circumstances of the will, a challenge is possible against the wishes of the estate owner for who would become an heir and spouses. The child of an estate owner may challenge the will if not included in certain situations, and he or she may win a case if specific factors exist and it is possible to challenge the state of mind of the estate owner.

When an estate owner places certain individuals in the will or other legal documentation, the courts may reverse the decision to leave a person out through a successful challenge. The person may need to proceed through the probate courts and challenge the will or make use of the court of appeals in the state where the will is read, and the assets disburse. There are often certain factors that must exist in the situation before the court of appeals will grant a reversal of disinheritance. The challenge must have merit, and the person must have a direct relation to the estate owner that died.

Sound of Mind

If the estate owner does not clearly have a sound mind when writing, replacing or revoking a will, he or she may create provisions that are successfully challenged in the probate courts. This is often difficult to prove in the courtroom, but with an expert witness and other elements of the matter available, it is possible that the family or spouse may prove that the estate owner was delirious, affected by dementia or suffered a mental or psychological condition. Then, the provisions in the will are not valid. The probate courts or court of appeals may reverse the will and allocate a default amount to the direct heirs, spouses or other dependents.

Proceeding through the Challenge

A challenge to a will is valid if the party is someone that should exist as an heir or beneficiary. However, if the will stipulates a less than favorable amount left, this does not necessarily provide a means to challenge the will. A disinheritance may give the person the ability to challenge a complete lack of any assets. The individual may need to hire a lawyer to take advantage of certain laws and regulations that exist to protect a child of an estate that receives nothing while a charity or organization receives a share of the assets.

Some valid claims are possible based on how much a child or spouse may receive in default through the probate courts. However, there are other local and state rules that provide for an heir when the estate owner disinherits him or her. These processes are often only possible if the estate owner leaves a will and not another legal document or procedure such as a trust or a business passed to a new owner. To challenge the will, the person will need a lawyer to work in the courtroom and explain why the person should receive a portion of the estate.

The Type of Will

If the will left behind is not in a correct format, the courts will not accept it. This is possible if the estate owner leaves a pencil written will, one without the necessary clause or one without a notary or witnesses. Even if the intent is there, the courts often will not accept an invalid form of will. In these situations, the children or surviving spouse of the estate owner will go through the default state probate court that provides for the spouse and children with a percentage of the estate. This is possible even if the estate owner disinherited the person with an invalid will.

Another possibly successful challenge to a will is if the current will does not have any of the updates for a replacement or with previously redacted statements revoked. In these situations, the child of the estate owner may still have a place on the will even if he or she stated he or she disinherited him or her. It is not a legitimate disinheritance unless the current will specifies this, a previously written will revokes inheritance of children or a replacement is found with the provisions to remove a certain person.

Legal Professional Explaining the Will

To seek a way around disinheritance the child of the estate owner will need an experienced lawyer versed in wills and the probate process. Through hiring a lawyer, it is possible to discover that a disinheritance is not valid against the child.

Provided by HG.org