ACTEC Estate Planning Essentials

The Dissatisfied Heir


In the realm of inheritance disputes, ACTEC Fellows answer a critical question: Can one sue if excluded from a family member’s will? Understand who is generally guaranteed the right to inherit. The paramount exception lies in spousal inheritance rights, where laws mandate a certain portion of assets pass to the surviving spouse. Yet, there exist limited circumstances where disinherited children may contest a will. There may be other bases to contest a will, such as lack of testamentary capacity or undue influence.

ACTEC Fellows Elizabeth K. Arias and Jean Gordon Carter answer questions heirs may have regarding an inheritance.

Elizabeth K. Arias
Jean Gordon Carter


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Hello, I’m Jean Carter, an ACTEC Fellow from Raleigh, North Carolina. With me is Liz Arias, Elizabeth Arias, an ACTEC Fellow also from Raleigh, North Carolina. And our topic today is the dissatisfied heir.

Understanding Inheritance Disputes

Liz, I thought I was going to inherit something under this will, and I didn’t. What can I do?

Liz Arias: This is a question I get all the time. A client comes in and says my father died, or someone in the family died, and I’m not included. Can I sue? And the first response I always give to that client is that, generally speaking, you cannot.

And this surprises some people. But in the United States no one, with very limited exceptions, actually has a guaranteed right to be left anything at the time of the death of someone else, even if it’s a family member. So the general rule is that if somebody dies, and even if you thought that you were going to be included in their estate plan, if you are not, then generally, there is nothing you can do.

Who is Entitled to an Inheritance

Jean Carter: What are the exceptions? When is there an entitlement to an inheritance?

Liz Arias: There are some exceptions to the general rule that you don’t have any right to be included as a beneficiary. The biggest exception, and the most important one to know about, is that in virtually every jurisdiction in the United States, a person who dies cannot disinherit their spouse. There’s a public policy that has been on the books on the laws of almost every state in the United States that says if you die, you must leave at least a certain amount or a certain percentage of your assets to your spouse. So that’s the biggest exception. If I meet with a client who is a surviving spouse of someone who has died, and they show me a will where they are not included, generally speaking, they will have a right to file a lawsuit.

The only other exceptions are much more limited. There is an exception only in a certain small number of cases where a child who has been disinherited may have a right, but it’s not usual. For example, if a client disinherits all of his or her children, that’s generally okay. So the exceptions are limited to rare circumstances like children were included, but then there was a child who was born after the will was signed. That child, for example, may have a right to be included.

There are a couple of other small exceptions that probably don’t apply to a lot of folks, but in other countries, if a client owned assets in another country, like a house in Europe, there might be some laws that are unique to that country that do give you a right. But otherwise, generally speaking, unless you’re a surviving spouse, there’s not much that you can do if you’ve been disinherited.

Contesting a Will

Jean Carter: The spouse exception doesn’t apply, or those other limited ones. But this isn’t right. I know there’s something wrong here. What other ways can somebody attack a will?

Liz Arias: That’s a good question. So, while I just told you the general rule is that if you’ve been disinherited, there’s generally nothing you can do, that rule only applies if the person who signed the will, who has now died—if that person was competent at the time they made the will, and if they had not been the victim of duress or undue influence.

So, what do I mean by that? A person, if they make a will, needs to know what they’re doing. They need to have what’s called capacity. A good example of someone who does not have capacity is a person who is suffering from late-stage Alzheimer’s or some other severe cognitive impairment. Those types of individuals are not competent. They generally do not know who their family members are. They do not know what they own. The law says if you don’t know what it is you want to do, you can’t form the requisite intent to leave assets to someone. And so, you can set aside a will if you can prove that they were not competent.

Likewise, if you can show that the person at the time they signed the will was the victim of what the law calls “undue influence,” i.e., somebody took advantage of them to such an extreme that they no longer signed a will that reflected their own intent; instead, the will reflected the intent of the person who exerted this undue influence on them. A classic example might be an elderly person in bad health who is home-ridden. Someone moves in with them, doesn’t let them out, doesn’t let them answer the phone, won’t let them talk to friends or family, and over the course of time, influences that person to make a will including them. So other than instances like lack of capacity or undue influence, which is your burden to prove, the law is going to say that the will is valid.

Now, there are some other things that might apply to your case that might give you a cause of action. So even if the will is valid, there might have been a mistake in how the will was written. One of the best ways to prove a mistake is to talk to the lawyer who drafted it and see if the lawyer agrees that there was a mistake.

In addition, there might be some kind of misunderstanding under the estate plan about how assets pass. So getting clarity about what the estate plan really means with respect to whatever you might be entitled to is also important.

And then, finally, sometimes a person may execute a will without a lawyer present, and in those instances, there can be times when they don’t execute it correctly. So if a will has not been executed correctly—and every state has its own rules and laws about what it takes to be executed correctly—then you can challenge the will on that basis.

Jean Carter: Are there other general considerations in this area?

Liz Arias: There are. I mean, litigation is always complicated. And one of the things I also remind clients is that even if you have a great case—either you were a disinherited spouse or you can prove the decedent lacked capacity—you still may be precluded from filing a lawsuit if you don’t bring it quickly enough. That means there could be what’s called a statute of limitations applicable to your case. So if you brought it too many years after the death of the testator (the person who died), then you might no longer be able to bring your claim.

And there are rules about who has standing to bring a lawsuit. So if, for example, you were the best friend of the person who died, and that person had been telling you all their life they were going to leave their house to you, and they don’t—just by virtue of being the decedent’s best friend, you may not have any standing to bring a lawsuit. Generally, in these kinds of cases, the types of people who are entitled to bring a lawsuit are family members of the decedent or individuals who have been named in a prior will that has now been changed to disinherit them.

So, you have to be sure that even if you have a case, that you have standing to bring it, that you’re bringing it within the right amount of time.

Elder Abuse and Capacity When Contesting a Will

Jean Carter:  Well, to make sure I understand correctly, then people can generally, with a few exceptions, leave their property any way they want to, and generally their heirs have to accept that. But there are some exceptions. And it’s very important to talk with a lawyer at the appropriate time about those exceptions and see if they apply, to see if ultimately, you aren’t going to be the dissatisfied heir.

Liz Arias:  That’s exactly right. You start from the basic premise that people can leave what they own to whomever they want; after all, it belongs to them. It should be their say. But if they lack the capacity to understand what they’re doing, or someone else has forced them to make a decision they don’t want to make, or they’ve disinherited a spouse or someone else who under the law has a right, then in those cases, you might have the ability to challenge the documents. But at the end of the day, I recommend talking to an attorney if you believe you have a case in order to figure out if, indeed, you meet the requirements to file a lawsuit challenging that will.

Jean Carter:  This is great advice. Thank you for your time.

Liz Arias:  Thank you.

ACTEC Estate Planning Essentials

ACTEC Fellows provide answers to frequently asked trust and estate planning questions in this video series.