Is mom's estate in jeopardy?

[justalayman]

CameronNewport;2532606]There are still other problems with that argument.

When a court interprets a will, it's main concern is the intent of the decedent. A court would not interpret a will based on a legal technicality such as the validity of the second marriage. Based on the facts shared by the OP, a reasonable judge would probably read "wife" to mean the OP's mother.

well, we don't know when the will was even written so we wouldn't not know who the wife was when it was written. The intent could have been the first wife.

and..


If there never was a divorce, it would not be possible to determine who the decedent considered to be "the wife" as he would know his first wife was still his wife and of course others would argue he lived with and accepted the illegitimate wife as "the wife", so, regardless of his subsequent illegal marriage to the second wife, a court would almost be forced to acknowledge the first wife as "the wife".

So, the decision would be very fact specific and as such, it would be impossible to determine how a court would rule in any given claim.

Anyway, it's all moot now: The mother was mentioned by name. The brother is a full brother (not half)

.and SoL has run. Yes, I agree, it's a moot point.

 

[CameronNewport]

well, we don't know when the will was even written so we wouldn't not know who the wife was when it was written. The intent could have been the first wife.

That's true. If the will were written before the second marriage and simply stated "wife," then he probably would have meant his first wife. Based on the facts the OP shared, I presumed that it was more recent.

If there never was a divorce, it would not be possible to determine who the decedent considered to be "the wife" as he would know his first wife was still his wife and of course others would argue he lived with and accepted the illegitimate wife as "the wife", so, regardless of his subsequent illegal marriage to the second wife, a court would almost be forced to acknowledge the first wife as "the wife".

So, the decision would be very fact specific and as such, it would be impossible to determine how a court would rule in any given claim.

I agree it is impossible to know how a court would rule, and the outcome would be very fact specific, but unless the will really was created before the second marriage, I do not agree that the first wife would have the stronger legal argument. More than likely, the second wife would have loads of evidence in her favor, while the first wife would probably have nothing except vague wording and a technicality.

Of course, I'm inventing facts. I could easily envision a situation where the first wife would have lots of evidence. But assuming the father had a typical marriage to the second wife, and the first wife was out of the picture, I don't know how she'd win.