Request to replace representative considered contesting the will?

[Millison]

What is the name of your state? Oklahoma
The decedent's will states (paraphrasing) 'if anyone contests this will, they will be excluded as heir/beneficiary'. Will the very act of asking the court to replace the [negligent and dishonest]personal representative be considered as "contesting the will"?
The court qualified this pers. rep. even tho' he filed in Probate FOUR YEARS after the death of the decedent!

 

[Dandy Don]

No, that would not be considered as officially contesting the will. However, it will aggravate the personal representative greatly.

Don't make such a request unless you have specific, documented evidence of wrongdoing by the personal rep. Do you have such evidence?

What is the reason for the delay in filing? So she could steal some of the estate? You need to consult a probate attorney to consider whether to request an audit instead of replacement of the rep, and also see if it would be advisable to request that an executor's bond be posted.

DANDY DON IN OKLAHOMA ([email protected])

 

[seniorjudge]

Q: The decedent's will states (paraphrasing) 'if anyone contests this will, they will be excluded as heir/beneficiary'. Will the very act of asking the court to replace the [negligent and dishonest]personal representative be considered as "contesting the will"?

A: Yes, if you contest any part of the will, whether you win or lose, you may be cut out of the will.

Some jurisdictions have allowed the affected beneficiary to ask for a declaratory ruling before actually contesting the will:

NO CONTEST CLAUSE: In terrorem clause applies separately to a codicil. The decedent's will contained an in terrorem clause expressly including contests of future codicils. The beneficiary adversely affected by the codicil sought a construction of the in terrorem clause before the probate of the will. The court in In re Estate of Martin, No. 323871, Dec. No. 811, 2003 WL 22427106 (N.Y. Sur. Ct. Oct. 17, 2003), held that the beneficiary was entitled to have the clause construed to determine the effect of the in terrorem clause before the court determines the validity of the codicil.

http://www.abanet.org/rppt/publications/magazine/2004/ma/current-probate.html


Here's some info on in terrorem clauses:

In terrorem is a Latin term meaning "in fear". An in terrorem clause is a provision in a will which threatens that if anyone challenges the legality of the will or any part of it, then that person will be cut off or given only a dollar, instead of getting the full gift provided in the will. The clause is intended to deter beneficiaries from contesting the will after the maker of the will dies. However, if the will is challenged and found to be invalid (due to lack of mental capacity, undue influence or failure to have it properly executed), then such a clause is also invalid. Therefore, a person seeking to challenge the will gambles on their chances of receiving the claim sought. Putting in a claim for moneys due from an estate is not a legal challenge to the will itself and is permissible without forfeiting the gift.

http://www.uslegalforms.com/lawdigest/legal-definitions.php/US/US-IN_TERROREM_CLAUSE.htm

 

[Millison]

Yes, I believe I have sufficient proof!

OKLAHOMA

1) Pers Rep has always been aggravated - to the point of 'antagonism' (can cite precedent for removal using this reason)

2) Exroof of one such wrongdoing lies in the 'intent of testator/donor', giving pers rep control BUT NOT INTEREST/OWNERSHIP (she had stocks issued in her name instead of 'the estate of...')

3) Reasons for delay in filing are probably a)hoping I would go away, b)does not want to move out of the [estate]house, and c)some wacko sense of entitlement, based on selective memory (Distribution is supposed to be 50/50)

4) It is probable that some of the estate has already been squandered. It has been very difficult finding an aggressive, responsive atty in the Court's jurisdiction, as I live out of state.

5) The will/trust state no bond be required. [CAN THE COURT OVERRIDE this in view of the circumstances?] An audit would be wonderful, but even a request granted for a 'proper accounting' would thow this person into a fugue state

THANK YOU THANK YOU for not only listening, but for hearing!

 

[seniorjudge]

THANK YOU THANK YOU for not only listening, but for hearing!

You are welcome.

 

[Millison]

In re seniorjudge affirmative to question;

OKLAHOMA
(Well, I have the 'worst/best case' pictures now)

Yes, definitely in favor of requesting a Declaratory judgement on this point - HAVE ANOTHER point that needs clarifying; in the string of [succeeding] pers. reps, the current is the last in line - however the will/trust makes no provision past this person ie 'as the court designates.....' Is this to be 'understood' or what?

As far as gambling - if I had backup, I would not be afraid of going straight for the Summary Judgement! (via Order to Show Cause?)

Thanks again!
ps. considering stationery with a 'res ipsa' watermark

 

[seniorjudge]

Q: Yes, definitely in favor of requesting a Declaratory judgement on this point - HAVE ANOTHER point that needs clarifying; in the string of [succeeding] pers. reps, the current is the last in line - however the will/trust makes no provision past this person ie 'as the court designates.....' Is this to be 'understood' or what?

A: Ah! If bad administrator is NOT the one whom the testator (the person who wrote the will) named, then you MAY not be in such a bad position after all. BUT, I am NOT going to tell you to contest a will!


Q: As far as gambling - if I had backup, I would not be afraid of going straight for the Summary Judgement! (via Order to Show Cause?)

A: What do you mean?


Thanks again!
You are welcome!

ps. considering stationery with a 'res ipsa' watermark
Now THAT is funny!

 

[Millison]

In re Summary Judgement;

OKLAHOMA
Believe I have enough evidence to ask the Judge for a Summary Judgement, as the 5 year mark has passed (since death of testator) and I had petitioned that the pers rep be replaced even before she filed the will in probate. It was never explained to me why she was granted 'letters'.
Yes, this person WAS named in the will to be Pers. Rep. - after the [deceased] spouse and a bank that declined, but the will did not offer a successor IF this Pers. Rep. were 'unwilling or unable..yadah yadah.."
As I said, it HAS been difficult getting sufficient legal representation from another state!
Just want to cut the Gordian knot!