While my mother was very illl, she changed her will. This was not her real intent. What can I do?

1 answer | Last updated: Nov 14, 2016
A fellow caregiver asked...

My mother had left her property to me and my sibling 50/50. While she was very ill and under heavy meds my sibling got her to amend it to where ALL of her property would be put in her name (she'd instilled fear in mom that I'd sell it all). There is a "no contesting" clause in the will, but I've been told that if I have a strong enough case with enough evidence of "undue influence" which I've been told I do, I've heard that some jurisdictions do not enforce the no contesting clause. Is this true?


Expert Answers

Barbara Repa, a Caring.com 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.

It’s true that you may be able to contest your mother’s will as now written, despite that no contest clause in it, but be prepared that it’s likely an uphill battle.

A will can generally be challenged if the person making it:

  • lacked testamentary capacity—that is, was of unsound mind due to drugs or disease
  • was subject to undue influence—so that his or her mental control was overcome, or
  • was subject to fraud—or deception made for personal gain or to damage another person.

If the new will unfolded as you say, you may have cause to contest it on any of these grounds. But you will need to be able to present good evidence—of conversations with doctors or friends, for example—that your mother’s mental state was unsound when she rewrote the will and that the rewritten version does not reflect her real intent.

Since gathering and presenting this evidence—and following the procedures for contesting a will—can involve tricky legal maneuvers, you will likely need to hire a lawyer for help. If there is enough money at stake to merit this, or you simply feel strongly that the wrong thing is happening and you want to try to stop it, then look for a local lawyer who is experienced in estate planning to begin the process.