19 Nov Dad is leaving me out of his will

Q. My dad is remarried and has two kids with his new wife. I’m his only kid from his first marriage. My dad is sick and I think my stepmother changed his will so that I am cut out. I have always had a good relationship with my dad but not my stepmother, and I don’t want to make my dad talk about this, but I don’t know what else to do. Help!
— Unfortunate son

A. A sticky situation, indeed.

Children do not have the right to inherit, and your dad has every right to leave you out of his will.

“If your father is competent and not being `unduly’ influenced by your stepmother, he can decide to leave you out of his will,” said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park. “The fact that this upsets you is even more of a reason to discuss his estate plan with him and find out his reasons for doing so, if this is the case.”

Many times people have a good reason to omit a child, even if the child may not agree.

For example, Romania said, it is very common for a husband to leave everything to a spouse, regardless if it is a second marriage. This is because many couples consider their assets as belonging to them, not one or the other.

Your dad may also feel he’s being fair by leaving you out.

If you are significantly older than your half-siblings and your father has paid for your education or funded a business or put a down payment on a home for you, he may believe he must leave the balance of his estate to his other children in order to put them in the same position he already put you, Romania said. Or maybe he feels comfortable that you are successful in life and that your half-siblings are just more needy.

“Alternatively, you may be surprised to learn he has provided for you in some other manner, such as by naming you as a beneficiary of a life insurance policy, IRA, or other payable on death account that does not pass under the will,” Romania said.

If your father is otherwise competent, there is little you can do at this time regarding your father’s will, she said.

Upon your father’s death, you may be able to contest the will, claiming undue influence by your stepmother.

If your father is not competent now, you can bring an action while he is still alive to have him declared incompetent and for you to be declared his guardian, Romania said.

“In that action, you may ask the court to declare the recently signed will invalid, although the burden of proof will be on you to show your father was incompetent or that he was subject to undue influence at the time he signed it,” she said.

For example, if he is frail and depends on your stepmother for all of his needs, and he believed he had no one else to turn to — particularly if such circumstances were created by your stepmother — and your stepmother pressured him into writing his will as he did, your father may have been unduly influenced, she said.

If directly approaching the topic is too difficult, you may try to start the conversation by talking about your own estate planning and who you would name as an executor, Romania said. Then, in turn, ask your dad who he will name as an executor or successor and why.

“This conversation would also provide you with greater insight as to whether your father freely formed his own plan or was unduly influenced by your stepmother,” she said.

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This story was first posted in November 2015.