Left out of fathers will in KY

What is the name of your state (only U.S. law)? KY

My father passed away a year ago and willed everything to his second wife. My brother and I were not mentioned in the will at all, we were the sole heirs in his previous will. His estate is worth approximately 1.5 million and my step-mother has informed us that she will be selling the home, farm and equipment and keeping all the proceeds. My brother wants to contest the will on the basis that my father's mental capacity was diminished when he signed the will having previously suffered a severe stroke. Although I feel that my dad didn't intend to disinherit us I don't think that we'll be successful in getting anything overturned as it appears that the will is legitimate.

Any thoughts? I would rather not go through the stress of contesting the will if there is very little chance of a good result for us however I will support my brother if that is what he chooses to do.

When was the latest will made? How long was the will in existence before he passed? Can you document his mental condition? What does his doctor about his condition? You will need as much information as you can get. Much of this you will be able to do on your own. You will then be able to determine how strong is your situation.

The latest will was made in Nov of '08. He had a stroke in Feb. '07 and another in Sept. '09 which he didn't survive. He processed thoughts slower at the time that the will was written but he was able to do a little bit of farming again, he could function but not at the same level. He wasn't able to read very well, kind of a slow reader to begin with. He also had double vision after the stroke that caused him to be nauseated when reading.

They were married about 13 years and had never written up a will before that. The one he had previously was written in the early 90's before they were married and left everything evenly between my brother and I. I honestly don't believe that he intended for us to receive nothing and that at the least there was a verbal agreement that when the farm was sold the estate would be settled with the survivors children, but I know that doesn't do me any good. I just know that he would have trusted her to do the right thing. Nothing she ever said or did would have made me think she'd do this. I know that legally she has the right, but I just expected her to be more decent about it.

Your situation is very, very common. That is why estate planning is so important and that everyone involved understands the intentions. How much did you talk to your father about this through the years?

The primary information you need to find is whether your father was mentally capable to change his will. Are the witnesses still around? The attorney? Your father's doctors? Nurses? Caretakers? Neighbors?

The burden of proof will be on you. Do you have the proof? Were you aware that he changed the will in November of 2008? Did he initiate the changing of the will, or was he coerced?

If either or you re going to attempt to challenge and hope to have any success in overturning your father’s will you will need to hire a competent experienced and very expensive attorney.

With respect to the state of his physical and/or mental condition at the time – you should be made aware that there is a presumption of testamentary capacity, which the contestant must overcome, by competent evidence.

And that the level or degree of mental competency required to execute a valid will is very low in the sense that testamentary capacity does not require that the testator has “retained all the force of intellect which he may have had at a former period in his life”, and “under certain circumstances may even be legally incompetent to transact other business or manage his own property”.

The authorities on the subject are all in agreement that testamentary capacity exists if at the time the will is executed the maker was capable of “recollecting his property, the natural objects of his bounty and their claims upon him, and knew the business of which he was engaged and how he wished to dispose of his property”.

I had a few conversations with him over the years about wills and people dying without wills and funeral arrangements. I know that if my grandpa (who is still living) had passed and left my dad nothing, he would have been just as hurt and upset as my brother and I are. The last conversation we had about it was a few months before he wrote out the will in 08', my step-mother was recovering from breast cancer and they were talking about someone's family fighting over the estate. I said "That's why people should have a will." one of them said that they didn't have one and I said (to my detriment) "You guys should really have a will. You have a blended family and you don't want any hard feelings over anything."

My brother has a copy of the will and is going to meet with a lawyer this week to have her go over it. I'm sure we can locate all the doctors and nurses who took care of him but with the HIPA laws I wonder if we can get any information from them. Our grandfather is behind us and I believe Dad's brothers and life long friends are as well. No one expected that this would be the situation we'd find ourselves in. We didn't KNOW that he'd changed the will, just that I told them they should really have one since they had a farm worth a lot of money and a blended family. I really thought I was doing the right thing by telling them that. I had NO idea that I would wind up being disinherited.

I do believe that it was her idea to write things up the way they were. Dad was a sensible and fair person. He was changed after he had his stroke, but he was proud of his farm that he'd worked all his life for and he was proud of my brother and I, loved his grandkids. I just can't imagine that this is how he wanted it.

latigo said:

And that the level or degree of mental competency required to execute a valid will is very low in the sense that testamentary capacity does not require that the testator has “retained all the force of intellect which he may have had at a former period in his life”, and “under certain circumstances may even be legally incompetent to transact other business or manage his own property”.

The authorities on the subject are all in agreement that testamentary capacity exists if at the time the will is executed the maker was capable of “recollecting his property, the natural objects of his bounty and their claims upon him, and knew the business of which he was engaged and how he wished to dispose of his property”.

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After he'd had his first stroke, we helped my step-mother be set up as his power of attorney while he was in a coma. Is that something that would need to be overturned at some point? Would that possibly back up our point of view?

bbug said:

After he'd had his first stroke, we helped my step-mother be set up as his power of attorney while he was in a coma. Is that something that would need to be overturned at some point? Would that possibly back up our point of view?

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The POA has no bearing.

I think you need to contact the actual people who authored the will for your father. They may, or may not, cooperate. Did he realize what he was signing in their presence? There had to have been conversation about his intentions. Did he understand what he was signing? Do they have a copy of what was signed? Was the body of the will altered after the signing?

If he willingly signed this latest will knowing what he was signing and with full intentions to leave every thing to step mother, you are out of luck.

All things considered I think that you have good reasons to suspect that the terms of the will was not his doing but that of the person that it solely benefited.

But you really need to consult with an attorney in your state proficient in practicing Kentucky probate law. Nothing productive will be gained by airing it out on the Internet. Plus there are time constraints involved here.

We are meeting with a lawyer on Saturday. I just wanted to lay things out here to get an idea of what we're looking at, what I should expect of the lawyer, what we need to do etc. Thanks so much for all the feedback. I am leaning towards just letting it be and moving on. It's emotionally draining for me and too much chance that we won't succeed and getting anything changed.