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I have three siblings. Our mother just passed away and under her will we each get an equal share of her estate, which I feel is unfair. How can I set aside the will to get my fair share?

I feel this is not fair, because my sister lives in Florida and visited Mother only once a year, whereas I did all of Mother’s shopping, took her to medical appointments and prepared meals for her and cleaned her house, attended to her personal hygiene and did almost everything for the last three years. 

The established grounds for setting aside a will are:

  • The deceased did not have the required legal capacity to make the Will.
  • The deceased did not know or approve of the contents of the Will.
  • The deceased was unduly influenced to make the Will.
  • The formal requirements for execution and witnessing of a Will were not met.


Unfairness, residence of the beneficiaries, or frequency of their visits are not grounds for setting aside a will. Every case turns on its own facts and advice should always be sought from an experienced estate litigation lawyer.

On the above facts, the family member may not need to set aside the Will to receive compensation for services rendered. This individual may be able to establish a claim for compensation and carve out a share of the Mother’s estate before the residue of the estate is distributed among all four children in equal shares. The claim could be based on equitable principles and the law relating to unjust enrichment. All the details surrounding the providing of services, including whether services were voluntary or not, will impact the result.

© 2015 Lawrence, Lawrence, Stevenson LLP

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