my adult daughter with cerebral palsy was left out of her fathers will.
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my adult daughter with cerebral palsy was left out of her fathers will.
what can I do? I don’t feel this is a legitimate will.
Asked on April 13, 2016 under Estate Planning, Washington
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 8 years ago | Contributor
A will is only illegitimate--or voidable--if one or more of the following occured:
1) The testator (person making the will) was mentally incompetent when it was made;
2) The will is not actually that person's will (e.g. someone forged his signature);
3) The will is the product of coercion or duress--threats of violence or criminal acts;
4) The will was procured by "undue influence"--the classic example is a house- or bedbound testator who is completely dependent on a caregiver, which caregiver used his or dominant position of power to get the will made.
Other than as the above, a will is valid, even if it is unfair, unwise, or even cruel.
If you believe that one of the above occured, your daughter (if she is mentally competent; or her legal guardian, if she is not) may challenge the will in surrogates or probate court by bringing a legal action, but as the challending party, the burden will be on her to provide proof of why and how the will is illegitimate. If the will can be successfully challenged, the decedent's estate (i.e. her father's estate) will pass according to an earlier will, if there is one, by the rules of intestate succession, if there is no earlier will.
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