05 Jan Can my dad cut me out of an inheritance?

Q. My dad has terminal cancer. I am his oldest daughter and also the product of his first and only marriage. I have a younger sister and he was never married to her mother. My father always said I would inherit his house once he passed away, but he changed his mind after I spent several years in prison. Now he won’t give me a clear answer. My sister is already in charge of his house, car and bank account. Do I have any rights given that I was the product of a marriage and she wasn’t? And what about my parents divorce decree? I believe it said I was to be left the house and he was to pay child support to my mother, which he never paid and she never pursued. He was also supposed to put me through college and that never happened, either. What can I do, if anything?
— Daughter

A. We’re sorry to hear about your dad’s illness.

Whether you are entitled to inherit anything from him is unclear based on the facts you provided, but here are some of the legal issues to consider.

You said you are the eldest daughter and that you were the product of a marriage while your younger sister was not.

These factors don’t matter in modern law, said Andrew Novick, a certified financial planner and estate planning attorney with The Investment Connection and Brookner Law Offices in Bridgewater.

All adult children are treated the same, without regard to their age or so-called legitimacy, Novick said.

“If your father doesn’t have a will — or if he has a will that is invalidated by a court — who inherits his estate is governed by New Jersey statute, which says all living children of an unmarried deceased person share the estate equally,” he said.

However, if your father has a will, the situation could be very different.

Children are not entitled to inherit anything so a will can specify how assets are to be distributed, Novick said. And you are not entitled to see or even learn about a will until after your dad passes, he said.

Assuming your dad does leave a will that excluded you in whole or in part, you may have some recourse by challenging the validity of the will or the enforceability of its provisions, Novick said.

There are three common ways to challenge the validity of a will.

The first is that the will was improperly signed. Obviously, there is no way to determine this without seeing the will and comparing it to the legal requirements, Novick said.

The second common way to challenge the validity of a will is to show that the decedent lacked testamentary capacity. But New Jersey law sets a very low bar for capacity. Novick said. As long as your dad understood what he was doing when he signed the will, a court will enforce it, he said.

“If you were excluded in your dad’s will, it seems pretty clear that he very much understood what he was doing given what you say about his reaction to your incarceration,” he said.

The third way to challenge the validity of a will is based on undue influence.

“To establish this, courts require clear and convincing proof that someone manipulated or coerced the deceased person into doing something that was contrary to what the person really wanted to do,” Novick said. “The fact your sister already has control of your father’s house, bank account, and vehicle raises questions, but these facts alone are not nearly enough to prove undue influence. You would need to gather more information to determine whether undue influence occurred.”

If the will is valid, the inquiry would then turn to the enforceability of its specific provisions, Novick said. The general rule allows a person to make a will that distributes assets any way they please, Novick said. It doesn’t matter what you think is fair. If your dad wants to leave everything to your sister — or to anyone else for that matter — that is his right, he said.

There are exceptions to rules that limit a person’s ability to disinherit a surviving spouse or a minor child, and there are distribution instructions that are against public policy, such as requiring a beneficiary to get divorced as a condition of the inheritance. Neither of these exceptions seem to apply here, he said.

Parents are not required to pay for their children’s college education costs unless specified in a divorce decree, Novick said, so any statement your father made relative to paying for college is probably not enforceable.

Most lifetime promises of an inheritance aren’t enforceable either, but there are exceptions, he said.

“For example, ill or elderly people will sometimes ask a friend or relative to take care of them in exchange for an inheritance,” Novick said. “These promises can be enforceable, although courts are very wary of them because of the potential for manipulation.”

Also, a signed contract to pay for college or a promised inheritance can be enforceable, but these exceptions don’t seem to apply here, he said.

Finally, your dad may try to avoid the need for a will by making gifts to your sister during his lifetime, or by making your sister a joint owner with rights of survivorship so that his assets pass to her automatically upon his death.

“Generally speaking, these mechanisms are subject to the same limits as a will,” he said. “If your dad lacked capacity, or if your sister exerted undue influence, or if your dad made an enforceable promise, you may be able to set aside the transfers. Otherwise, you will be out of luck.”

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This story was originally published on Jan. 5, 2022. 

NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.