08 Feb My step-mother changed my dad’s will

Q. My father divorced my mother to marry a younger woman. I wasn’t happy with the union but I always treated my step-mother well and did everything I could for the both of them. My step-mother made him change his will – my father had a high-powered job and my step-mother inherited everything. Is there anything I can do?
— Not happy

A. Unless there were specific circumstances surrounding your dad, there’s probably nothing you can do.

In the United States, for the most part, an individual has the right to leave his or her property and assets to whomever he or she chooses. This is called “freedom of disposition,” said Mary Scrupski, director of estate planning with Prestige Wealth Management in Flemington and Millburn.

Other countries are governed by what is called civil law, she said.

“In many countries, there is forced heirship, which means a person has limited control over how their property is distributed at death,” Scrupski said. “Even in the United States, certain classes of beneficiaries have the right to take `against’ the will.”

For example, a surviving spouse can claim what’s called an elective share of an estate if he or she is disinherited.

The rules for granting an elective share are complicated, but the policy behind the law is that a spouse has the obligation to provide for the support of his or her spouse and by disinheriting the spouse, they are violating this obligation, Scrupski said.

In general in this country, adult children do not have any right to inherit from a parent, she said.

Scrupski said perhaps because our law values independent choice so highly, if you can prove that your father did not act of his own free will, you can overturn the will.

“If you can show that your stepmother `unduly influenced’ your father to change his prior will and leave everything to her, then his assets will be distributed according to his last valid will, or if there is no will, according to the intestacy statute,” she said.

Proving undue influence can be difficult.

Scrupski said if you can show that your step-mother was in what is called a “confidential” relationship with your father and that there are suspicious circumstances, the burden of proof shifts to her to show that she did not unduly influence your father.

This can get very technical, Scrupski said, and each case is very fact specific.

For example, you mentioned that your father had a high- powered job.

“If he was working at this job at the time of his death, it will be extremely difficult to show that your father lacked free will,” she said. “However, if he had stopped working and had diminished capacity, it becomes easier to show undue influence”

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