Can we stop my husband's siblings from getting their elderly mother from writing him out of the will?

5 answers | Last updated: Nov 17, 2015
A fellow caregiver asked...

I am my husband's General Guardian. He has a severe brain injury. Two years ago, his three siblings talked his elderly mother into writing a will and cutting him out of any share in her estate.

Recently, I learned that his mother has given ownership of her houses to my husband's siblings. They are also each co-signers on several of her accounts. Two years ago they told her she had to cut my husband out of her will because of Medicaid qualifications. The results are that when she passes away, there will not be any estate and my husband will not inherit anything. Ironically, he does not qualify for Medicaid because our Social Security will always put him above the Medicaid limits in our state. He can't work and he has extra medical bills so some inheritance would be a help. His siblings have ceased contact with us.

Is there any way to protect oneself against siblings who are influencing an elderly mother, and plundering the estate? They know about Special Needs Trusts, so that is not the solution. The siblings were also responsible for having my husband declared legally incompetent.

Expert Answers

Unfortunately, there is probably nothing you can do to protect your husband against against his siblings' influence over their mother, and her estate. Your husband's mother has the legal right to cut him out of her will, assuming she does that properly. By law, to disinherit a child, a will writer must do that explicitly in her will. So if the siblings have done their legal homework, or hired a competent lawyer, and put an express disinheritance clause in the mother's will, your husband cannot challenge that will.

When the mother dies, there should be a probate court proceeding in the county of her death. In that proceeding, the will must be filed. So you will be able to check the will and see what it says (if anything) about disinheritance. If the will is silent about disinheriting your husband, he has a legal right to a portion of his mother's estate.

In theory, your husband (meaning you, acting as his guardian) could file a lawsuit challenging the siblings' influence over the mother. But to prevail in the lawsuit, you'd have to prove that the mother was legally incompetent, or that the siblings used fraud or other malicious force to get the mother to give ownership of her houses to them and to have the mother cut your husband out of her will. Proving fraud or other malicious force is always difficult. Worse, it would be expensive for you. You'd need to hire and pay a lawyer to bring the lawsuit. Unless you know of clear evidence of fraud or other malicious force being used by the siblings, I would not consider a lawsuit.

I'm sorry I can't offer you some helpful advice. The mother cutting your husband out of her will seems unfair, but sometimes in life there's no practical remedy to correct an unfairness.

Community Answers

A fellow caregiver answered...

Dear Denise; Than you for your answer. As strange as it may seem, it's helpful - even though not what i wanted to hear. Since my husband's injury I've had to learn how to pick my battles. Could you clarify something? You said the Probate proceeding is in the County of her death. She spends 1/2 the yr in a Northern State that I understand has Probate laws very difficult to overturn. This is the State where I believe the Will is filed (if it is filed). She also spends 1/2 yr in Florida. She has/had property in both States. Is the Estate probated in the County of her death regardless of where her residence is? It's unlikely that I would challenge the will - based on the reasons you gave. However it is helpful to know that my husband has a chance if he is not specifically excluded. You are right. Sometimes life is not fair and there are no remedies. I have not excluded the posibility that eventually his siblings' consciences will prompt them to do the ethical thing. In my mind, every dollar they take beyond 25% of the Estate, is stolen money. Stolen from their brother. Ill gotten gains. I'll remain anonymous because they may visit this site.

Ca-claire answered...

So sorry to hear about your legal difficulties with family. Please take consolation, that others will reap what they sow, whether you are there to see it or not. You will find blessings in taking good care of your husband regardless of how his siblings/mother treat him. I pray that you will be able to compartmentalize the ill will which appears to be flourishing in the rest of your husband's family and take comfort in the fact that you are doing the best you can.

A fellow caregiver answered...

Thank you CA-Clare. Somehow deep in my heart I agree with the things you say. The property taxes on the homes have already reset upwards (quadrupled) because of the change of ownership. I may sound overly dramatic, but each of the 3 siblings has about $150,000 that would have gone to my husband, if they hadn't interfered. I'd like to believe that money taken from the weak and defenseless brings some kind of bad luck with it. Superstitious perhaps. Personally, I don't understand why any Senior citizen would put her security at risk by transferring titles before her death. Divorce and Lawsuits are 2 ways that the grown children can totally loose the transferred properties and savings. 20 yrs ago, my aunt became homeless. The divorce Court awarded the transferred home to the daughter in law. The daughter in law told her husband's mother to get out. My 80 yr old aunt had no legal rights because she had quit deeded the 3rd generation homestead to her married son.

Geo2015 answered...

There are always family inheritance problems, to be fixed like your conflict -- case by case. You have to have him stay close to his elderly mom. Don’t let the siblings take over. The older generation have wealth that everyone wants, the saving generation, now with real estate worth millions, passing on property, and possibly liquid assets as well, to grown children who are mostly in debt -- and who are reportedly feeling entitled to what's left, regardless of what your husband or anyone else should get. I suppose entitlement or greed is a result of being a bit spoiled... plus having expectations of financial success without doing the work it takes to get it. Plus some disappointed expectations, inverted. This severe Recession, or Depression in certain areas, makes people do things they might not do otherwise. Generations prior did not have to contend with a severe Recession late in life -- in fact the older folks' real estate assets have increased in value significantly. Like your hubby, many want their inheritance, or part of their inheritance, as soon as possible... due to such low cash flow. So they go to inheritance advance firms like, or perhaps, or All established inheritance advance specialists; all reliable for fast, secure probate loans or probate advances, trust fund loans, 72-hr. inheritance loans, discounted estate loans -- whatever you want to call it, it's fast inheritance advance So the current flock of heirs in the United States and Canada have what the analysts and call "cash flow problems"... rising prices of just about everything -- compounded by severe unemployment and under-employment -- or the worry about it. And what the article indicates -- regarding entitlement. So maybe feeling somewhat entitled to inheritance funds right away is what motivates many heirs and beneficiaries these days to apply for an inheritance loan or probate loan from a boutique inheritance advance firm. And it helps cash flow problems, not entitlement problems -- that's how I see it. Maybe getting a large inheritance advance now will help you and your husband, right now. Might be better not to wait.