What to do (if anything) when mom's will leaves you short
Louis Silverman, Special for The Republic | azcentral.com 3:32 p.m. MST February 16, 2016
Estate Planning: Our courts have held that there must be probable cause to bring a challenge in order to avoid a "no contest" penalty
Question from William in Tempe: For many years my mother and I were not on good terms. Two or three years before she passed away we reconciled our differences. She told me that she had left me only a small inheritance in her will, but that she intended to "fix it" so that I would receive an equal share with my brother and sister. She died a couple of months ago without updating her will, leaving my siblings 45 percent each, and only 10 percent to me. The will includes a clause that if I challenge it I can be disinherited. Is there anything I can do to receive a larger share?
Answer: William, I'm glad that you were able to reconcile with your mother. I'm sure it took a great weight off of her, and you as well, to have repaired that relationship.
Unfortunately, I don't have good news about your chances to increase your inheritance share. A verbal statement that one wishes to update her will, by itself, is not enforceable. The law of wills is still very formal, requiring that it be in writing, and if typed, witnessed by at least two persons. If handwritten, witnesses are not needed. There is no such thing as an oral will, and a verbal promise to leave assets is not enforceable.
If you challenge the will and the court finds your challenge was not in good faith, then the court will enforce the "no contest" clause. Our courts have held that there must be probable cause to bring the challenge in order to avoid the penalty. Examples
So, for example, if you legitimately believed that your mother did not have mental capacity when she created the will, and you have legitimate medical proof, then the court would likely find that you had probable cause for a challenge and would not enforce the penalty.
However, if you bring the challenge simply because your mother promised to leave you more than she did, but never updated the will, the court will find that you do not have probable cause for the challenge and you will lose your 10 percent interest. One chance
One final note in regard to a potential agreement with your siblings to divide the estate. You didn't mention how you and your siblings get along, and whether they might acknowledge that your mother intended to include you with an equal share.
If your siblings agree that you should receive an equal share, Arizona law specifically allows beneficiaries to enter into a written agreement to change the distribution provisions if they all agree.
So you might approach your siblings to see if they would agree to divide equally. If they do not, then unfortunately there is really nothing you can do about it.
Louis A. Silverman is founding partner of Silverman Patton, PLLC in Tempe. A board certified specialist in estate, trust and probate law, he can be reached at lou@silvermanpatton.com or 480-491-3216.
