'His wife is manipulative': My father married a woman, 60, with no money, then changed his will. How can I preserve my inheritance?

By Quentin Fottrell

'He changed his will, leaving his new wife his share of the estate, plus all of the contents of the house, including family heirlooms'

Dear Quentin,

My father, who has three children, married a 60-year-old woman who did not have any funds to contribute to the marriage. He changed his will, leaving his new wife his share of the estate, plus all of the contents of the house, including family heirlooms.

His wife has become very controlling, accusing her stepdaughter of stealing money and making accusations that my father's children don't care about him. Her daughter treats my father like a puppy dog and makes herself look more caring than his own children.

His wife is manipulative and tries to push us away. My father has downsized his home three times. He has also helped his stepdaughter renovate her house, despite not doing much to support his own daughters.

We would like to know if there is a chance that we could successfully contest my father's will after he dies and/or convince him to have it written so that she could live in his house for her remaining days after her husband passes.

In this instance, his wife would have a roof over her head and the estate would be returned to the biological family upon her passing. We, as a family, believe this would be the fairest and most equitable estate plan. She would, of course, be entitled to his pension.

Unhappy Daughter

Related: My friend, 78, owns a house with his girlfriend, 68. As executor, should I convince him to split his estate 50/50 with his only child from a previous relationship?

Dear Unhappy,

There's a difference between a "lost" inheritance and elder financial abuse.

That said, I'll run through all the possible scenarios with the proviso that an inheritance only exists after you have received it. The answer to your question depends on your father's mental state, the nature of their relationship, where they live and whose name is on the deed to your father's home. If the house is in both their names, you may could end up contesting an estate based on receiving pennies on the proverbial dollar.

Separate property generally applies to anything acquired before their marriage, plus gifts or inheritance acquired during their marriage. But laws vary by state. In Texas, for instance, your stepmother would have the right to live in the house she shared with her husband for the remainder of her life, but ownership of the property will be divided in accordance with intestate law upon her death (assuming there was no will).

Types of property ownership vary by state. Joint tenancy with the right of survivorship is the most common form of ownership between spouses who have an equal share of the property; it does not allow one owner to add another person to the deed. If your father dies, his share goes to the other owner. Tenants in common do not have the right of survivorship.

Proving undue influence

Assuming there was enough in the estate to make it worth your while, taking attorney fees into account, in order for you to contest the will, you would likely have to prove that your father was not of sound mind when he changed his will and/or prove that he was under undue influence when he made the changes.

"Undue influence is when proof exists that the deceased was taken advantage of by someone they trusted, to create a will that they would benefit from," according to Parisi, Coan & Saccocio in New York. "To prove undue influence in New York, the person contesting the will must prove three elements: motive, opportunity and actual exercise of undue influence."

"It can be difficult to prove undue influence," the firm adds. "In addition to demonstrating evidence of motive and opportunity, the evidence must also be presented to support the actual exercise of undue influence." The court must therefore rely on the testimony of healthcare providers, family members, attorneys and other trusted advisers.

In this instance, you would not be going up against a stranger, neighbor, power of attorney who abused their client's trust or even a nursing home. You would instead be challenging the authority and status of a spouse who you say has been taking care of your father these past years, even if you are unhappy with how little money she had upon entering the marriage.

The legal term 'of sound mind'

The other basis to contest a will would be whether your father was of sound mind when he created it. "The legal term 'of sound mind' refers to an individual's mental capacity to make decisions and understand the consequences of those decisions, especially when drafting a will or entering into legal agreements," The Kiken Group, an Irvine, Calif.-based law firm.

"Being cognizant, in this context, means that the testator understood the nature and extent of their assets, recognized the beneficiaries to whom they intended to distribute their assets, and comprehended the legal effect of signing a will," it says. This can lead to "complex" - read that as lengthy and expensive - legal battles, the law firm adds.

So where do you go from here? You need to balance your actions with acceptance. Action: Understanding the power of your reach - and the limits of that reach when it comes to a second marriage - is crucial. They are husband and wife, after all. Acceptance: Your father wants to look after his second wife and ensure she is taken care of after he dies; you are family, but you are not part of that dynamic.

All things being equal in their lives, who gets what will be his choice.

More columns from Quentin Fottrell:

My husband turned into a monster after we married. I own a $1.3 million home. How do I save myself and my finances?

My friends order drinks and pricey dishes in restaurants. Is it rude to ask for a separate check?

I feel used': My partner stays with me 5 nights a week, even though he owns his own home. Should he pay for utilities and food?

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-Quentin Fottrell

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07-03-24 0645ET

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