Did you ever think about whether a child of a first marriage can contest a will? Maybe this happened to you. Your mom or dad got remarried, then passed away. You later find out that you were left out of your mom’s or dad’s new will – and maybe everything was left to your parent’s new spouse or maybe to the kids that your parent had with his or her new spouse.
It’s devastating. You hurt in places you didn’t know could hurt. And then you get angry. You feel like things were stolen from you – and maybe they were. The last you knew, your parent’s will divided everything evenly between you and all of your siblings – including your half-siblings.
So you have a choice to make – you can let it go, or you can contest the will.
If you let it go, you move on with your life and (potentially) silently stew over losing all or a part of your inheritance for the rest of your life.
If you decide you want to contest the will, then you might be in for months or years of court time and potentially tens of thousands of dollars in legal fees.
Before a person can contest a will, they have be qualified to contest the will. A qualified person is either an heir-at-law, or a person who was a named beneficiary in a previous will. Heirs-at-law are direct relations, such as children, grandchildren, parents, grandparents, and siblings as well as further out relations, such as aunts and uncles, cousins, and nieces and nephews.
If a person is qualified, then the court will have to consider whether to ”set aside the will.” A court will set aside a will in a few situations. The four most common challenges to a will are lack of capacity, improper execution, fraud, and undue influence or duress. Each of these four challenges to a will has its own standards that needs to be assessed when applying them to a particular case.
Will challenges and contests are extremely dependent on the facts and circumstances of any particular case. A will contest can be successful, but it largely depends on the situation surrounding the creation of the will.
Even if you have been hurt because a parent left you out of their will, that does not mean that that will can be set aside unless there is a fault in the creation or execution of the will while the person was still alive, which is really hard to prove after they’ve passed away.
The easiest way to prevent something like this from happening is to create a well-thought out legal life and estate plan before it’s too late (Ahem, “too late” means that the person has already died and now the children are fighting over everything that’s left behind). Using good estate planning techniques, such as trusts to preserve assets from a first marriage for children of that marriage, can go a long way toward protecting the children and heirs in a blended family.
If it’s too late to create a division of assets, then you’re left with stewing or contesting.