Can a stepmother take all assets if the siblings were excluded from the will?

A fellow caregiver asked...

Can a stepmother take all assets if the siblings were excluded from the will?

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

The law allows people to leave their money and other property to anyone they wish—and also to exclude those that the world might normally assume would get some of their riches, such as children.

If the will states specifically that the children are excluded, then courts will usually honor that wish—and assume that the willmaker meant what he or she wrote.

In this situation, there are two possible ways that excluded children could challenge the will and prevent the stepmother from taking all. Both are longshots.

First, if the will doesn’t expressly exclude the children, but merely neglects to name them as takers, they could urge the probate court to find that the omission was unintentional. The stepmother and other takers under the will would be free to challenge this challenge, though—for example, by presenting evidence that the children were estranged from their father for an extended period.

Second, the children could claim that the stepmother exerted “undue influence” over the father—so serious that the will or at least some part of it should be declared invalid. This is a tough legal standard to meet. It would require that the excluded children prove that the stepmother actually overcame their father’s capacity to express himself freely and influenced him to leave the property to her, instead.