Brother changed Will while Mother had Alzheimer's

My mothers mom just passed away Oct. 11th 2008. She had Alzheimer's for 3-4 years, developed pneumonia, which lead to her death this Sat. Her son (my mothers brother) was power of attorney over her. The Will she wrote before she was sick declared everything to be split equally amongst all the 5 children. About 6 months ago, my moms brother, along with one of her sisters, decided to take her to change the Will (without the knowledge of the other children)- And leave everything to him(the son). The Will has not yet been read, but this is what her sister told her they did. There is a lot of money at stake and I am wondering what my mother and her other siblings should do in this situation. She was not in any way competent enough to make any sort of decision that big. She could not drive, did not know who we were, etc. I am positive that her medical records would confirm this. Any advice would be greatly appreciated Thank you for you time.
Texas

Find a probate attorney who has experience contesting wills, although you may or may not end up having to contest, as your attorney will have to evaluate the facts/circumstances.

Since you have the medical records to prove she had already been diagnosed with Alzheimers, the will could possibly be automatically invalidated, since a person with Alzheimers or diminished mental capacity is presumed to not have understanding or capacity to be able to agree or understand what they are signing.

Also tell your attorney about the fact that brother had power of attorney, so that brother will have to provide an accounting with receipts to prove that he spent the money on her care and did not selfishly keep it for himself.

DANDY DON IN OKLAHOMA ([email protected])

Thanks so much for your reply. Will the legal fees be taken out of the estate, or will my mother have to come up with that on her own?

There is no way for sure to know this in advance, and may depend on whether your mother's attorney serves as executor or not--if he serves as executor, then the fees can be deducted from the estate. She can discuss all of her concerns with the attorney.

Has anyone directly asked brother about this? And, explained the problems involved. There might be a very simple explanation and solution. This could be done immediately to avoid costly attorney fees. Once the attorney "can of worms" opens it becomes very expensive (but sometimes necessary).

Yes, my mom stressed about it for months before finally talking to him. He never came out and said that he had changed the Will (just a bunch of arguing on how he cared for her and how much of a burden it was)- But the sister that went with him to change the Will, told my mom that since he lived with his mother since birth (rent and bill free) and cared for her when she got sick, he feels he deserves more and apparently all. My grandmother had paid 3 years in advance for her nursing home care, but he felt that they would drain her money if she lived past 3 years.

Has anyone told brother that what he has attempted is most likely not acceptable? Do you have a copy of "the will she made before getting sick"?

No, my mom doesn't have a copy of that will. Wouldn't the lawyer have a copy of it? Or the courthouse?

It really is a sad and sick situation. My mom did tell him how wrong it was, but I guess he figures there is nothing she can do? She told my sister that it was wrong as well, and said that "mom" did not know what was going on. Her sister responded with "well, she said she did". Well, if you told her the sky was green she would have agreed. My mom and I were going to go downtown to the courthouse today, but unfortunately it's a holiday today, and I'm sure they are going to be closed. We were going to get a copy of the will, but we'll just have to wait until tomorrow. I know that the original Will was filed with her lawyer, so I can only hope that they don't just throw those things away. I will be calling several lawyers today, if they are not closed too.

i'd betcha that it would be a slam dunk case before a judge, so do something before the assets disappear.

it is doubtful that the will was notarized, because the notary would be taking a chance on losing his/her job.

if it was only witnessed, the witnesses would need to have signed that the mom was of sound mind, which of course would have been a lie.

in any case, the will needs to be probated, so it would seem like you should get a say.

lawyers dont throw wills away, normally - since it is part of their bread and butter.

I spoke with a lawyer this morning. My mother is going to try one more time to talk to him on Friday. (her brother about the will) If he still does not want to show her the will, or is still not wanting to change it, then we will be consulting with this attorney on Monday. My mother does not have the money to pay for lawyer fees, so I guess we will see what he says about it coming from the estate, or maybe like someone had mentioned, the case won't go far since she was not competent and the judge will just throw this new will he created out. Thanks for all the help.

Nothing good will be accomplished by "talking" to the brother--he will only deny everything and dig his heels in deeper because he knows everyone is on to his illegal scheme. And your mother's competency is definitely an issue here--you need to discuss with the attorney whether it would be beneficial to have an official competency test done with a physician.

Dandy Don said:

....And your mother's competency is definitely an issue here--you need to discuss with the attorney whether it would be beneficial to have an official competency test done with a physician.

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How did the OP's mother's competency become an issue?

Ir is the OP's grandmother's will that is being discussed. And it is a bit late to have her competency tested.

anteater said:

How did the OP's mother's competency become an issue?

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I'd like to know that too.

Angie,

1. Do not have your mom talk with her brother anymore about the will.

2. Have mom obtain an original death certificate for granny. The funeral home can obtain as many original copies as one orders for a small fee per each.

3. Once mom obtains an original death certificate, have her go to the courthouse open intestate probate (without a will) and fill out the papers to be Personal Representative (executor). Hopefully, your uncle will not go rushing to open probate right away. If the court appoints your mom Personal Representative and issues her Letters of Administration/Testamentary, have her immediately obtain granny's medical records - especially when granny was diagnosed with Alzheimers. Mom needs to beat her brother to the courthouse and obtain granny's medical records.

4. Attorney fees are paid by the estate for the Personal Representative, not for one contesting a will.