Beyond The Will, Client Compass

I Was Omitted From a Will. Can I Sue?

June 10, 2021


Grieving the death of a friend or family member is hard enough. Imagine the compounded feelings of realizing that an inheritance you had been promised or otherwise believed would be coming is not materializing. You were omitted from your loved one’s Last Will. Can you sue? Let’s explore three scenarios.

  1. You and your father were very close through the years, though your contact became somewhat less frequent after you and your spouse moved out of state and focused more of your time on your young children and your careers. Dad had often said to you, “Everything I have is for you and your brother after I’m gone,” but he never actually showed you a copy of his Will. A few weeks after Dad’s death, your brother emails you a copy of a Will with language that intentionally omits you and leaves everything to him. Can you sue?

Yes. A decedent’s “heirs-at-law” – most typically, the surviving spouse and children, with other family lines coming into play if there is no surviving spouse or child – have standing to contest a Will from which they were omitted. The most common grounds for contesting a Will are lack of capacity and undue influence.

  1. You never married or had children, and you are estranged from most of your family. You met your best friend at a book club meeting when the two of you were in your mid-30s, and you both quickly realized you were kindred souls. You spent nearly every day together for decades, and at one point, each of you retained the same attorney to draw up Wills, leaving all of your property to each other. You are devastated to find out, a few weeks after your best friend’s death from an aggressive form of cancer, that she secretly executed another Will a few months before her death, leaving all of her property to the Dana-Farber Cancer Center. Can you sue?

Yes. Any devisee under a prior Will whose inheritance is adversely affected by the Will being submitted for probate has standing to contest the later Will. Again, the most common grounds would be lack of capacity and undue influence. Here, though, you may also explore the possibility of a claim for breach of contract or something similar, to the extent that you and your friend may have made legally binding promises to each other in connection with drawing up the earlier Wills.

  1. Your parents divorced when you were very young. Your father remarried when you were a teenager, and you grew to be very close to your stepmother, who had no children of her own. After your father died, and as your stepmother’s health declined, you spent a lot of time taking care of her, even taking unpaid time off from work when she needed you. She was always very grateful and loosely discussed that you would need to be repaid for that, but no concrete terms were ever set. You never did receive any compensation, and your stepmother ultimately passed away, leaving nothing in writing – not even a Will. Can you sue?

Yes. You are not an heir-at-law nor a devisee under a prior Will, but you may have standing to file a claim against your stepmother’s estate to pursue compensation for the services you provided and the sacrifices you made to take care of her. Even if the two of you never entered into any formal contract or detailed agreement, you would have the right to pursue compensation under a quantum meruit theory to recover the fair value of the services rendered.

For more on how to contest a Will and otherwise pursue claims after the death of a friend or family member, stay tuned to “Beyond the Will”!

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