The Moneyist: My mother-in-law changed her will and left everything to her second husband. Can her children contest the will?
We live in Kentucky, where my mother-in-law recently passed away. Prior to her current marriage seven years ago, my husband, her oldest child, was named as her executor. The will was simple and stated that everything would be divided evenly between her three children. Now we have discovered that she changed her will and left everything to her second husband.
The only mention of her children in this latest will was naming my husband as a secondary executor. Understandably, there is great hurt among her children that they weren’t even mentioned in the will. As recently as last spring, she told her children that the vacation home would be theirs and that she wanted to help them out when she passed.
There is an expensive vacation home and numerous retirement accounts at stake. Several family members stated that the will would be invalid for leaving nothing to the children, and are pushing the kids to contest the will. I am afraid it will do more harm than good. What would you recommend?
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A will can generally be contested on one of three grounds: lack of testamentary capacity (in this case, of your mother-in-law), undue influence from a family member (or her second husband) and improper execution.
The latter is often the easiest and most common way a will is contested and/or overturned. In this case, your mother-in-law did not mention her children in the will to specifically disinherit them.
A person will often state they intend to disinherit Tom, Dick and Jane, or alternatively, leave them a small amount, but state that they will forfeit even that small amount in the event they contest the will.
In a situation such as this, your mother-in-law’s children could argue that their absence was an omission, and if she had intended to disinherit her children she would have stated that explicitly.
To be deemed valid in Kentucky, a typed last will and testament must be signed in the presence of two credible witnesses. It must also be made on a hard copy, not an audio, video or electronic file.
“If there was a previous will, and you are now making a new one, you should be sure to state that you are revoking the previous will,” according to Scheynost Law Offices in Louisville, Ky.
“At a minimum, care should be taken to make sure the new will ‘fits in’ with the old will,” the law firm states. “Generally, it’s easier to simply revoke previous versions and start over.”
Under Kentucky law, a spouse has certain rights to inherit property from his/her spouse, in addition to those assets held jointly by both spouses such as cars and property. Talk to a lawyer about your options.
Fair warning: contesting a will can be a prolonged and expensive process.
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