Generally, testators are free to choose who they want to assign as beneficiaries in their wills. Family, relatives and other interested individuals cannot challenge the document’s validity solely for the reason that they find it unfair or believe the testator should have included them in the will.
However, there is an instance where one can contest a will because their name was not on the document. It is when the will does not include a child born after its execution.
Looking at the testator’s intention
In some cases, testators fail to include their children in their wills for reasons such as not knowing they had that particular child or was not able to update their wills after the child was born and before they died.
When a will does not include the name of a child born or legally adopted after its execution, the courts will look into the facts and circumstances to determine whether the exclusion was intentional.
If it appears that the exclusion was a mistake, the child or an interested party can challenge the will for this reason. The child can receive their share of the decedent’s estate if the court determines that the testator inadvertently omitted them from the will.
Otherwise, the court will treat a child as disinherited if it shows that the testator purposefully left them out of the will.
A limitation: When the child receives an advance equivalent
Aside from proving the fact that a child born or adopted after the will’s creation has been omitted from the document, the individual challenging the will should also show that the child did not receive an advance equivalent to their share of the testator’s estate for the contest to stand.
A child being left out of a will indeed raises questions and potentially be a ground to challenge its validity. However, it still depends on the unique circumstances of each case. It is crucial for concerned parties to meticulously explore options and if possible, seek legal advice to understand their rights and the potential implications of initiating a contest.