My father remarried. I have always had a good relationship with dad. He sat my brother and I down and explained his will. He wanted his wife to have life use of the home. But, if she decided to sell, 50% would go to her and the other 50% would be split by my brother and I.
Dad came down with cancer and passed last October. We just obtained a copy of his will and he left everything to his wife. We are not even mentioned in his will. His wife has told us that when she passes she will leave us 50% of her assets. We have never had a good relationship with her (although my brother and I have tried to); I don't believe for one second she will include us. What recourse do we have? Can/should we contest his will? Dad lived in NY.
-- Mary Jane
A.
Your situation is all too common. Unfortunately, the only recourse is to contest the will. In a will contest, you must prove that your father was unduly influenced by his second wife or that he was incompetent at the time he signed the will. That is a very difficult burden to meet.
It is also quite expensive to contest a will. There will be depositions of the witnesses to the will even before there is a trial.
There is one good aspect to your case, though. If the will is denied probate, then the law of New York would apply to your fact situation and the estate would be divided so that your father's wife would get the first $50,000 and one-half of the remainder of the estate (plus $10,000 and certain personal property) and you and your brother would get the other half of the remainder.
Realistically, though, the obstacles to winning a will contest, plus the expense you would have to bear, make a will contest a very iffy step for you to take. You should consult a lawyer in your area who is experienced in will contest cases to get a more detailed opinion about your chances of successfully contesting you father's will.
