What can be done if our mother has wavering Will?

Question

My mother just passed and there are two issues at hand; one, she had two sons, and depending on her mood at the time, she has taken only me out of her will on a couple of occasions....only to revise it and reinstate me soon thereafter.  Two; she had been under the influence of some heavy duty prescription narcotics for several years and was clearly not stable.  The latest edition of her will took me out once again.  Is it my understanding that this can be contested under grounds of the law-seeing siblings as equals, particularly when the deceased has equally included me in previous editions?

Edward Armstrong · Answer

Will contests are, at best, tricky.  The window of time for filing this type of suit is very limited.  If an estate has been opened, the clock begins ticking.  Generally, the statute of limitations on filing a will contest is six months from the grant of Letters Testamentary.  In addition, the will contest is limited to just that:  Contesting the will.  No additional claims may be joined.  You definitely need to retain an attorney immediately who is familiar with probate law.

Thomas Phipps · Answer

You can file a will contest.  You will need to retain an attorney who handles probate matters.

Jayne Sebby · Answer

You can contest the will on the grounds that your mother was no longer "legally competant" to make such decisions.  However, if you regularly caused her problems or have a reputation as a criminal or spendthrift, you may not have much of a case.

Kelvin Green · Answer

You can contest a will but also understand the law allows a person to be written out of a will or be disinherited. You need to see an attorney in your area who does probate work. There are possibly issues around competency but competency for wills is an easy standard to meet so my advice is get an attorney and review your options it will be worth the money you spend.

James Frederick · Answer

Your understanding is not quite right. Yes, the Will can be contested. But you need to prove that the Will was executed when your mother lacked mental capacity, or that someone exerted undue influence on her. The burden of proof is against you. These cases can be won, but they are difficult and expensive. You absolutely need a top notch probate litigation attorney on your side. It would also help you if you can provide compelling evidence as to your mother's condition when the Will was signed. If this was set up through an attorney, the attorney would likely testify against you. The fact that you were previously removed from your mother's Will does not help, either.

Victor Waid · Answer

Yes, the will of your mother appears to be challengeable in light of her mental state as you have suggested. Obtain yourself probate legal counsel to represent you, to have yourself appointed as administrator of the estate, or challenge the will,  if the executor in the filing of the petition for probate,  relies on the will only. Do not delay.

Georges Shers · Answer

There is no presumption that all children are treated equally. If the Will states they are not, then that is it, no matter how unfair it might be. otherwise, Wills would have little effect unless there was a long recitation as to why there is unequal treatment. The other issue is not whether she was stable only at times but whether she had sufficient mental competence at the time she made the Will. That will be a medical issue. You can fight the Will if you think you have a good chance at succeeding and/or find an attorney [probate attorney who does litigation] who will handle the matter.

Norman Green · Answer

Your grounds are absurd.  I have never heard of anything like that.  If you can demonstrate that she was incapacitated or under undue influence of your brother, then you may have a case.

Thomas Edward Gates · Answer

Your challenge is she was unfit (due to health) to make a will.  There is no law that the sibling must share equally.  Your mother is free to distribute her estate as she sees fit.  Previous will are voided once a new will is made.

Christine James · Answer

See an attorney asap and have the wills reviewed.  There is no grounds of law seeking siblings as equal when it comes to a valid will.  The will may be able to be set aside however based on undue influence or lack of capacity, but you need a lawyer now in order to make that claim.  If the will is admitted to probate it is deemed valid and it will be too late.

James Maguire · Answer

A will can be contested, but it is a very difficult and expensive process.  A testator is presumed to be mentally competent at the time that the will is signed. You would have to produce expert medical testimony to prove otherwise.

Nathan Wagner · Answer

Unfortunately, you cannot contest the will on the grounds that siblings should be treated equally. A person is allowed to use a will to disinherit some or all of their children. They don't have to be fair or reasonable about it. However, you might be able to contest the will on the grounds that she did not have the mental capacity to make the latest will. You would basically have to show that she did not understand what she was doing when she wrote you out of the will.

Sanford M. Martin · Answer

As a child, you are a person of interest in your mother's estate, so you may contest the will. Realize that such claims are difficult to prove in probate court, and require evidence. You will likely need an attorney to represent you.

Roger Durkin · Answer

You are correct. However, you would be better served by having an attorney contest the will.

Brian Haggerty · Answer

Tough one. You could argue lack of capacity based on the prescriptions. First, try talking to your sibling, see if the two of you can work something out. In the probate of your mother's will you could enter into an agreement varying the disposition, and just agree that it should be equal and she did not have capacity. With the right wording your sibling could avoid an argument that he is making a gift to you.

Dara J. Goldsmith · Answer

You will need to consider filing a Will contest.  You should meet with an attorney to address the specifics and costs.  These are expensive matters to litigate due to the need to obtain medical records and retain expert witnesses to address her medical condition. This information is only intended to give general information in response to an inquiry.  It does not establish an attorney client relationship.  This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.

Glen Shearer · Answer

Her will will be valid unless it is timely contested on grounds of undue influence or lack of testimentory capacity. A person has the right to will there property as they desire and does not require them to be " fair" or do things equally.

Kathleen Delacy · Answer

It is possible to contest a Will, but very difficult.  No one has a right to inherit anything from anyone.  As far as her state of mind, if when she signed the Will she had a lucid moment, she would be considered competent to sign a Will.

Bernard H. Greenberg · Answer

You cannot contest the Will on the ground that siblings should be treated equally, as there is no such law. However, you may want to investigate challenging the Will on the grounds that your mother lacked appropriate capacity.  To determine whether this challenge could be effective, you will need to consult with an attorney specializing in estate litigation and Will contests.

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What can be done if our mother has wavering Will?

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