recorded admission of will change

What is the name of your state? LA.
Please Help! Please! I am contesting a will which I believe was written under influence of the stepmth.
I have a recorded taped conversation, where my stepm says she made my dad change his will, mainly because she WAS not going to put up with the children from prior marriage. She says for him to make out another will, and when he was to come home after surgery, they were to throw it away. Is that not undue influence?
This will she made him wirte out, also leaves everything to her. In prior wills the bulk of the estate was to be devided equally between his children.
Let me say, for the entire lenght of their marriage, he kept his money seperate in a seperate bank, she did too. He inheritated land, a home, and a mobile home as a 'seperate property', she kept hers seperate also. The only jointly account they has was a checking account they kept in her bank. That's it.
As it stands now, we get nothing. She and halfsister get everything. The land I live on, my dad bought me 11 years ago, and gave to me. But never put in my name. Never thought we needed to. I thought I could trust stepmom. The house my brother lives in was an inheritated home, that daddy inheritated as a seperate property. He has lived there for 10 years and it was to go to him.
It is a sizeable estate, involving monies from gas wells from the land my dad inheritated from his mother, my grandmother.
Wouldnt this recorded admitied statement where the stepmom says she made him do this and the fact they were to throw it away, when he got home, fall under undue influence laws? Couldnt our case be won with this info along with all the other evidence? Along with the fact that my father never put anything in both their names and inheritated property as a seperate property? He never changed it in 36 years, except for the day before his surgery & she states she made him do it. He thought and we all did that he would be home in 3 days after his surgery., and they were to throw it away.
But she did not go through with the throwing away part, just the part where she was to get it all**************
I believe that if you except this will, she made him wirte out, then also you would have to put in to play...the part they were to throw it away. Wouldnt a good attorney be able to have this entered into court?
I would really appericate any advice I could get right now. I am so scared and have been so upset over all this, I just cant believe she is doing this to us and the memory of my dad's.
Please Help**************.

A 20,000.00 retainer and 2 to 3 years of hearings along with depositions, discovery medical records & lots of other etc. plus a trial will, if you are lucky, get you to a conclusion of this situation.

Or, proper attention to such details some years ago would have made all of this un-necessary.

At this stage CONSULT A LOCAL ESTATE ATTY. ask them your questions and they will let you know what the chances are of prevailing. My bet, based on your post is that you have a 10% chance of prevailing.

(1) Just wondering: is there a date and time stamp on the message to definitively prove when the call was made?

(2) How long was this lady married to him?

(3) Did your father have the assistance of an attorney to draft his will or did he just write it himself?

I believe your chances for winning are much stronger (about 95%), if you have one or more of the following elements in your favor:

(4) Is the previous will available (that left everything to the children)? I'm hoping that evil stepmom didn't destroy it!

(5) At the time he signed the newer will, was he taking medication or suffering from a disease that would have affected his judgment, making him vulnerable to undue influence?

(6) Is there any language in the new will that mentions a specific reason for wanting to disinherit the children? Let's hope there isn't!!

(7) The question now is, can you afford to pay a large retainer fee to get an attorney to represent you? What is the total value of the estate?

Problem with the previous will is that he neglected to include an inheritance for his wife, which she is entitled to by law, a certain portion of the estate.

DANDY DON IN OKLAHOMA ([email protected])

This is in Louisiana which is a community property state which means the surviving spouse automatically owns 50% of all community property; and even on that property that was held as separate she may have an interest due to conversion, i.e., using community assets such as part of a paycheck to pay for expenses, e.g. taxes, repairs, utilities, etc.

Also, the survivor has a usufruct by law for 10 years or until remarriage over the community immovable property.

You need to speak to an attorney about this, but the statutes, civil code, and code of civil procedure are to the advantage of the surviving spouse.

There is a legal requirement that children and spouses must be mentioned in any will.

Instead of contesting the will, consult with your attorney (or get a second opinion from a different attorney if the original attorney is not willing to agree to your suggestion since he may prefer to get a larger fee by contesting the will) to see if he would be willing to make an offer on your behalf to the stepmother (in order to avoid costly legal fees on both sides if the will were going to be contested), offering her to forget about this will and instead substitute the one that named the children as heirs and at the same time offering her a settlement, perhaps a percentage of the estate.

DANDY DON IN OKLAHOMA ([email protected])

"There is a legal requirement that children and spouses must be mentioned in any will."


Geez Don, isn't that awfully broad?
If not could you please let me know where that requirement is listed?
I am sure that others who read this may be well served by a clarification.

I agree that it is a great suggestion and a very prudent thing to have in any will, but a legal requirement?

I disagree and await my correction.

rowz said:

"There is a legal requirement that children and spouses must be mentioned in any will."


Geez Don, isn't that awfully broad?
If not could you please let me know where that requirement is listed?
I am sure that others who read this may be well served by a clarification.

I agree that it is a great suggestion and a very prudent thing to have in any will, but a legal requirement?

I disagree and await my correction.

Click to expand...

Beat me to it. You may have a long wait!

(1) Just wondering: is there a date and time stamp on the message to definitively prove when the call was made?

I am sure we have that. also on this tape she state they were to throw this away when my father returned home after surgery. He was to return in 3 days after surgery. We all thought that. But that did not happen**************but she wants to use this written paper for her use, but she has not admitted to the fact they were to throw it away after, as she says on taped conversation. I believe that was the only way he would have written that...because for 36 years, he never did such a thing......why 24 hours before? Because he was to destroy it after surgery. We took it to a place where they could put this on a cd and they cleaned it up for us...its ready for court....so we also have that reciept.

(2) How long was this lady married to him?

unfortunetly 36 years....but for 36 years, he never put her name on anything that he inheritated, nor did she. His money was in a seperate account in a seperate bank**************and she did the same. Her name is on the home he bought, and I never ever want any part of that home, neither did my brother.

(3) Did your father have the assistance of an attorney to draft his will or did he just write it himself?
No assistance at all from an attorney, just his wife assisted him. My father wrote out this will, on a Sunday, day before his surgery. actually 48 hours before his stroke.
He did have prior wills which he left bulk of estate to all 3 kids, us and a halfsister. Only child from that marriage. But he also left the stpm a home, IRA account, 401K, life insurance, checking account $53,000, an account in her name for $25,000, all cars and trucks....and the home was paid for. He was not the kind of person to leave out anyone, not even his children.
But the Friday night before, we were all there and the stpm started in on my dad about who would get her home and wills and things. He was pissed that she brought this up in mixed comp.....but he told her then, it was all taken care of. She stated well it probaly wasnt legal, and he assured her it was that he had talked to a friend a legal sect. And wouldnt you know it, that was the very attorney she used after his death. Where the sec. worked.

I believe your chances for winning are much stronger (about 95%), if you have one or more of the following elements in your favor:
I believe we have more than enough...with the right attorney...

(4) Is the previous will available (that left everything to the children)? I'm hoping that evil stepmom didn't destroy it!
I do have prior wills, he left the major bulk of his estate to his children, land, homes, money in bank accounts, timber and oil rights, which all came from inheritated lands. Aslo when he inheritated these he inhert. as a seperate property. Never in 36 years of marriage, did he include her name on these. Because my grandpa wanted these for his kids and grandkids.
The home my brother lives in for the past 10 years, my dad inheritated as a seperate property also. It came from my dad's mother. Which is across the street from where my dad lived.
She did however use these prior wills to pick out pallbearers for his furneal..and the preacher he wanted also. And each of these wills one prior to 1998 and the other was written about Aug 2006, 5 month before the newest one..in these they are just about the same exact things...the same things for her and the same things for the kids. Only difference was a fishing camp on the lake, which has been sold now. and another cd.....which was to be given to me.... My dad had confided in me with all wills. He asked me to read each of them at different times, I guess he trusted me. I was proud he confided in me many times about his personal business...I never ever asked him anything, it was always upon his insistance.

(5) At the time he signed the newer will, was he taking medication or suffering from a disease that would have affected his judgment, making him vulnerable to undue influence?
Yes, he was on lots of meds, and suffering from many illinesses. Ok, my father was in a lot of pain and had been for months. That is why the back surgery was coming up on Monday. The day after he wrote the will.
Also he was a cardiac patient, and had triple bypass, high blood pressure and if I am not mistaken my dad shook alot and I believe was suffering from park. disease. He took alot of meds, there were lots of bottles of meds in the kitchen where he kept them. I never looked at the bottles, so I dont know what he was on. i do know, my stepm said, many many times at hospital, he couldnt take pain meds, they left him loopy. He had a few spells prior that I saw where he alsomst passed out when he stood up and so on.
Plus in ICU, after his surgery, his heart doctor said, that if he would have had prior knowledge of the surgery coming up, he would have not let my dad go through with it. He was not in good health. I beleive the stpm was counting on that all the way to the bank.
As of Mon.,.bro. attn. says we can not get my dad's med. records. WHY?



(6) Is there any language in the new will that mentions a specific reason for wanting to disinherit the children? Let's hope there isn't!!
Nope, just says, I leave everything to my wife, her name. This cancels all other wills I may have had. signed and dated. 24 hours before his surgery and almost 48 hours before his stroke. Thats all it says.....I nver understood why he did this, until I heard the conversation......taped one. Where she says she got him to write this out, because she was not going to deal with me and my brother, and that when he came home from hospital, they could throw it away. That was the only reason he wrote it out. Because in his mind he could come home in a few days and throw it away. I have to think the stpm must have known something we didnt at the time she made him leave it all to her.

(7) The question now is, can you afford to pay a large retainer fee to get an attorney to represent you? What is the total value of the estate?

I can not afford a huge retainer fee**************.but that shouldnt be a reason for me to be cheated out of what was rightfully his childrens, either. Or the fact that, she should have thrown it away......that was their agreement. While dad was sick, the gas checks still rolled in for months..... around $70k plus..each month, I figure. My brother has retained an attorney. This estate is very large. Not sure how large. But probably millions over time, I guess.

Problem with the previous will is that he neglected to include an inheritance for his wife, which she is entitled to by law, a certain portion of the estate.

Ok, in previous wills, he did include her**************a home, nice home, 401K, retirement, life insurance, checking $53K, $25K in cd.....cars and truck etc**************but he never before left her the land he inheritated becuase of the wells......and that was her only goal**************.why? Becauce, the weeks and days before his surgery..she asked me several times to talk my dad into doing a will where she would be cut in on the gas money, and she asked me to talk him into giving her POA over him.....I never did... Never did we have any piece about this issue in the weeks prior to the surgery. She bad mouthed my brother to him, that I heard, and I am sure she had things to say about me, when I wasnt around. She never shut up...abut us. In reality, she always talked about how greedy my dad was to her....
.while he was in ICU she told me she wished she had divorced him a few years ago, then she could have gotten his money and our inheritence. Yep, her words exactly.
While he was sick in hospital, she started remolding their home, painting it, new furniture, new doors, etc...she sold the jetski, a cadi....and took everything that belonged to my dad out of that house. We discovered this at the wake of my dad when we went back to the house. I was shocked...and up to this day, she has not offered us a photo, a sock or handkerchief, not one thing personal thing of my dads...and it hurts like you wouldnt not believe..to know she threw him out like yesterdays trash.

I also want to say, I could understand all this better, if I knew this was what my father wanted. If I was not in or had not been in his life. That just is not the case. He was a good, kind, christian man, who loved each of us. He is my hero and what I saw in him, is what I look for in every person I meet. Integrity, kindness, loving, funny, man who devoted his time for 25 years for Saint Judes Children Hospital, was a school teacher and high school principal, softball coach, loved baseball with all his heart and a christian who loved the Lord. Who loved and honored his parents & loved us all. You dont find many people like him everyday. I was so proud that he was my dad, and honored to have him in my life.

Please help......any info you can give me**************thanks so much.

DANDY DON IN OKLAHOMA ([email protected])

Dandy Don said:

There is a legal requirement that children and spouses must be mentioned in any will.

Instead of contesting the will, consult with your attorney (or get a second opinion from a different attorney if the original attorney is not willing to agree to your suggestion since he may prefer to get a larger fee by contesting the will) to see if he would be willing to make an offer on your behalf to the stepmother (in order to avoid costly legal fees on both sides if the will were going to be contested), offering her to forget about this will and instead substitute the one that named the children as heirs and at the same time offering her a settlement, perhaps a percentage of the estate.

DANDY DON IN OKLAHOMA ([email protected])

Click to expand...

We did try to settle this...but she will not budge at all. She hates us that much. I am guessing**************we gave her attorney our wills, but she was mad because my dad did not include her in the money from wells, etc....she wanted more.

Gawd, what a screed.

From what I know about probate [and it is not alot!!!] here is what I see.

You have an issue in the way the spoils were divided. OK, thats fine, just fine.

On the other side, they have a will.....perhaps it may be a very fine will.
If it is correctly drafted, followed the rules of practise in the locale, duly witnessed and signed then you have ONE WAY OUT.

File a caveat that will stop the estate from being probated.
THEN pony up the afore-mentioned 20K or so and co-operate with your lawyer in presenting your claim.

Oh, & I forgot....SHUT UP about all the stuff that the evil step-mom/wife said and stick to provable facts & illustrate a basis for your claims.

Those would be
a) claim of Undue Influence via the existence of a confidential relationship;
b) Coercion via this same relationship;
c) Mental Deficiency at the time of making & executing the will;
d) the decedents weakened state preventing him from knowing the 'proper objects of his bounty' & than manner of the disposition of his assets by the new will.
e) existence of suspicious circumstances
f) at the time of signing the will the deceased lacked testamentary capacity.
g) fraud, deceit or mistake in the preparation & execution of the will

I am sure that a lawyer can come up with more. The above is just the stuff that I am intimately familiar with.

I am also very familiar with this important fact:

YOU HAVE TO PROVE ALL OF IT WITH VERIFIABLE FACTS, DOCUMENTS & WITNESSES.

See my initial reply.

In answer to some of your questions:

Louisiana is a COMMUNITY property state, therefore, once two people marry anything brought into the marriage from that point forward is community and owned 50/50. (This assumes that a marital contract was not executed prior to marriage.)

Items owned prior to marriage (and in some cases acquired during marriage: gifts, inheritance, etc.) are generally separate property and the spouse has no claim. That said, if community assets are used in benefit of separate property (using part of a paycheck, interest from savings, etc.) such as paying taxes, repairs, other expenses, then the spouse certainly has a claim on property because of 'conversion'.

Now, if your contest suit does succeed, then the children will own any real estate in conjunction with the surviving spouse 50/50, with the spouse holding a usufruct (right to use) for 10 years.

As far as the banks accounts are concerned the same rules of community apply.

Finally as to disinheriting children: Louisiana is the only state that has forced heirship of children. However, this is limited to those children under the age of 24 or those that are disabled no matter the age. Also, there are situations where forced heirs can be disinherited (see Civil Code sec. 1617 to 1626)

questions about community or seperate property

If a I understand this right, any thing brought to the marriage, while married, then it is considered community property?
My question is.....does that also mean when you aquire, inheritate or buy property as a 'seperate property?' That is what is says on the land he inheritated, that he accepts this as a 'seperate property', would that matter? Even thought he was married at the time his parents died, when he aquired the property?
The stpm did the same thing while married, I am sure she kept her properties as a seperate property also. So will her property come in to play as well?
I am not against her having what she is entilted too.
But, if the money came from inheritated land, that he aquired as a seperate property, will she be able to get this also, as a community property? Even when it was kept in another bank, in his name only? And her money also will be able to be used as community property? This is not clear to me when it states on the property papers a seperate property?

czb said:

If a I understand this right, any thing brought to the marriage, while married, then it is considered community property?
My question is.....does that also mean when you aquire, inheritate or buy property as a 'seperate property?' That is what is says on the land he inheritated, that he accepts this as a 'seperate property', would that matter? Even thought he was married at the time his parents died, when he aquired the property?
The stpm did the same thing while married, I am sure she kept her properties as a seperate property also. So will her property come in to play as well?
I am not against her having what she is entilted too.
But, if the money came from inheritated land, that he aquired as a seperate property, will she be able to get this also, as a community property? Even when it was kept in another bank, in his name only? And her money also will be able to be used as community property? This is not clear to me when it states on the property papers a seperate property?

Click to expand...

The inherited land is separate property, though as I've stated before she may have some claim if community property (wages, interest, dividends, etc.) are used to pay expenses or iimprovements. Any money that comes into the marriage even if it's derived from separate property (such as rent) is community property.