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contesting of a will

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Lori Nolan

Junior Member
What is the name of your state (only U.S. law)? New York

My grandmother passed away in June 09 and at that time my mother handed the rights to the family grave to my brother 2 days after she died.
They postponed the internment until Sept but my mother had a boyfriend and she had been hanging onto the ashes so that when my grandmother died and the grave
was opened up she planned to put her BF in the grave too. Unfortunatly for my Mom when it came to the signing of the paper work my brother refused her boyfriend in the
grave (purchased by my mom and her sister when grandfather died back in the early 80s). This sent a family fued of emmense proportions, they no longer spoke or
had any contact. There is also my cousin involved on my brothers side over this as her mother is also buried there, she threatened to exhume her mother if the Boyfirend went in the grave. My mother chose not to enter her mother or her boyfriend at all and kept them at home. To say the least she was devastated and beyond upset.

After not speaking and my mother writing letters to Archbishop, Notre Dame, Berreavement Council etc. to try to have that horrible decision she made revoked when she handed him the rights. My mother found out early July that she has advanced stage 4 lung cancer. Mother did not want any clinical settings nor did she want chemo, she was told to prepare for hospice. My mother went to another grave yard and purchased a grave and we entered both my mothers bf and her mother there early Aug.
Since that was done mother wanted to prepare her finances, she had appointments at the accountant and lawyer Aug 17 and 18.
Mother did not want her son involved in any of this whatsover and proceeded to take him off all of her accounts and prepared a will with her lawyer via telephone.
The day she was to go to lawyer..Aug 18 to sign she was way to ill to go.Home care insisted that she go to the hospital, I called the lawyer and they said they could come to the hospital.
She signed (under painkiller) the will she had been preparing over the last month. She also signed a disinheritance form for my brother. Mother died the next morning Aug 19 in hospital.

My brother was informed via the lawyer as we are estranged and have had our own share of problems, I had to see Mom through the way she wanted it.
My mother left lawyer as executor and my kids and I are the benefactors, I believe mother knew that my brother would try to contest and now he is.
So his fight is with the lawyer not me, but he is extremely upset especially about my grandmother not being layed to rest where she should be. I am worried that this lawyer is going to suck the estate to fight it with the expensive Lawyer he has hired to represent himself..Should I have my own lawyer? I am not sure of this Honey guy and he has control over everything, I am pretty scared. Mom lived on her own right up until the day she was admitted to hospital, until then she was a very healthy woman. Yes she was on painkiller, but her doctor (GP) told me he has many patients that take high doses of painkillers that would kill me but helps them..and they are totally competent.

I hope you can tell me what you think of this, I admit its pretty crazy
I can not access any of the estate money and I took about 6 weeks off to care for her without payment. To say I am behind is an understatement.
My brother had not spoken to my mother in the year before her death..does this help play onto my side. My mom's lawyer says we have alot of weight but he does admit it was a fast signing of the will.

Any advice would be appreciated
Thank youWhat is the name of your state (only U.S. law)?
 


anteater

Senior Member
Your brother certainly has the right to contest the will. And, while he may lose, the grounds do not seem to be as frivolous as the grounds in many will contests are.

As I see it, you have two choices after discussing the situation with the other beneficiaries and trying to come to a consensus:

1) Ask the executor to explore a settlement that you can all live with.

2) Let the executor fight it out.
 

Lori Nolan

Junior Member
one more question

Thank you for your response.

In your experience is a signing at the bedside hospital a regular occurence..typcally.


Thank you once again.
 

anteater

Senior Member
In your experience is a signing at the bedside hospital a regular occurence..typcally.
No.

And that is one of the reasons why I would say that his challenge to the will is not of the frivolous variety. There is at least decent circumstantial evidence to raise questions as to your mother's competency to make a will and/or whether any undue influence was exerted.

Let me be clear... I am not saying that he will succeed. Only that he probably won't be laughed out of court and, if he is willing to push it, the executor will have to gather evidence from the attorney that executed the will, the witnesses, medical records, etc. to show that your mother was competent to make a will and she made it of her own free will.
 

Lori Nolan

Junior Member
Hi

the Lawyer is the executor. Mother did this on purpose so that my brother would not harrass me.

He has not either.
 

latigo

Senior Member
What do I “think”?

Well, since you asked, I think that you need to reconcile these two statements? They seem to be inconsistent.

1. “ Mom lived on her own right up until the day she was admitted to hospital, until then she was a very healthy woman.”

2. “I took about 6 weeks off to care for her without payment.”

_________________________

And secondly, should you be thinking of making a claim against mom’s estate for “services rendered”, then you'd need to produce a writing signed by your mother in which she agreed that you are to be compensated and precisely how much.

Either that, a written document, or convincing independent testimony from a third party(s) attesting to a verbal agreement that mom agreed that you were to be paid and how much.

Those would be the only options as the “deadman statute” would prevent you from testifying to any conversations you might have had with your mother on the subject of your claim against her estate.
________________________

As far as your brother’s objections to the will being admitted to probate, bear in mind that whether he is successful in the challenge or not, he will have to bear his own legal fees.

Also, under New York law when a will is drafted and “the signing of the will is supervised by an attorney” there is a rebuttable presumption of testamentary capacity. So in order to overcome the presumption that mom possessed the mental capacity to make her will the brother will be faced with burden of proving that she lacked that capacity.

And having the mental capacity to make a will does not mean that your mother was as mentally alert as she may have been in a former period of her life. All the mental capacity required is that she was aware that she was making her last will and testament; understood the disposition of her assets as called for by her will; had a reasonable awareness of the extent and nature of those assets and understood who were then her nearest relatives.

The fact that she may not have possessed the cognitive capacity to manage her personal or financial affairs would not in itself defeat the will.
 

Lori Nolan

Junior Member
hello

Thank you so much!! What a great forum.

I did take timeoff for Mom, we never discussed payment and I really do not want to be paid for this as I love her..but I also am in a little debt due to it.

Just to clarify, She had alot of doctors apt. she was fairly weak and she was afraid her doc would pull her drivers lic. I would drive her to her apt and drop her at front door, that way she was not too worn out walking from parking lot up to the building. This helped alot..she was very worried about her drivers license.

Mom had alot of new meds that needed to be p/u as they were experimenting with what worked for her.
I ran all her errands, groceries and whatever else she needed or wanted.
Consider that we live in two separate ends of the city .. I spent alot of time on the road back and forth.

I am also a single mom to two girls, I certainly had my hands full.
I appreciate your time and your input..ALOT!!

Thank you
 

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