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

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 Answer

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.