Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
My girlfriend’s father recently passed away unexpectedly. They cannot find a copy of his will in the house and it was never filed with the town. It was written; his sister and ex-wife have both come forward and said they watched him write it. Today, a lawyer that dealt with her father came in contact and said he has a will on file from 42 years ago in which everything was left to his son. This was 18 years before my girlfriend was born. Her father disowned his son for the last 10 years and always said that his daughter was going to get everything – he seemed to had forgotten about the old will he had written. My girlfriend currently lives in the house that was in her father’s name and drives a car that her father owns, and her brother is the type of person that will take everything and kick her out on the street (obviously I wouldn’t let her live on the street). Since this will was written so long before she was even born, and there are witnesses that know another will exists somewhere, is this something that she could contest successfully?
The answer to your question is yes, this sounds like a situation where your girlfriend could probably contest the will. Whether the contest would be successful would depend on the exact evidence she has versus the old will.
However, a contest may not be necessary. Because the will was written long before she was born, even if it were valid, she would be a “pretermitted heir.” Most, if not all, states have laws that protect against someone accidentally disinheriting their child in just this sort of circumstance: you have an old will, and don’t realize that it excludes your new child.
Generally speaking, the pretermitted heir laws assign a percentage of the estate to the child who was left out. And having that statutory share (along with whatever evidence you have of the new will) should be more than enough to negotiate a reasonable settlement with the brother.
