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Is mom's estate in jeopardy?

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Worried4Mom

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

My father died 14 years ago and in his will left everything to my mother. My dad was married before about 1952 and supposedly divorced his first wife about 1954. We don't know for certain that they actually got a legal divorce. I know that he paid alimony for a while but that's it. Mom and Dad did not get legally married until about 1991.

My brother had a falling out with mom last year. He contends that mom and dad were never legally married because Dad and his first wife were never legally divorced, voiding dad's will. He has gotten a lawyer and is trying to take mom's house and land away.

My question is can he legally do that? Does the fact that dad paid his first wife alimony mean that they got a legal divorce at some point? If they did not legally divorce does that void dad's will, but then hasn't the statue of limitations run out? My mom is elderly and doesn't need all this stress in her life. What should be done?
 


Worried4Mom

Junior Member
Yes, the estate was probated. As for the exact wording in the will as how it refers to mom, I'm not sure. I'll find that out today.
 

Dandy Don

Senior Member
Visit the county courthouse in person or call them and ask for a divorce records search using your father's name and your mother's name (there may be small fee for the service) and you will know for sure whether they were officially divorced or not.
 

curb1

Senior Member
Dandy Don,

I think you misread the original post. Mother and father were never divorced. Father and "first wife were "supposedly divorced" in 1954.

Worried4Mom, is "brother" a product from first marriage, or from your mom? Why would he get "a lawyer and is trying to take mom's house and land away"?
 
The divorce (or lack of divorce) has zero impact on the will's validity. A spouse may lawfully disinherit the other in Georgia (see O.C.G.A. § 53-2-9). So, even if there was never a divorce, then your father still had a right to give all of his property to your mother.

Your brother must be arguing that the will is invalid for other reasons.

EDIT: I'll also add that even if this occurred in a state that protects a spouse from disinheritance, it still wouldn't invalidate the will. The spouse would simply be given a portion of the estate, and the rest would then be distributed per the terms of the will.

The only way your brother would be given anything would be to invalidate the will.

Last, depending on when the will was probated, there could also be statute of limitation issues.
 
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justalayman

Senior Member
The divorce (or lack of divorce) has zero impact on the will's validity. A spouse may lawfully disinherit the other in Georgia (see O.C.G.A. § 53-2-9). So, even if there was never a divorce, then your father still had a right to give all of his property to your mother.

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depending on how the will was worded, the wrong person may have claimed the property. If the will said, "to my wife I leave"...and did not name the wife by name, if the first marriage was still valid, the first wife is "the wife".
 
depending on how the will was worded, the wrong person may have claimed the property. If the will said, "to my wife I leave"...and did not name the wife by name, if the first marriage was still valid, the first wife is "the wife".
Totally irrelevant.

The first wife would then have a claim. The will would not be invalidated. The brother would take nothing. Because he'd get nothing, he wouldn't even have legal standing to make that argument.
 

Worried4Mom

Junior Member
In the will it did refer to my mom by name. My brother who is doing this is my brother from dad's second marriage (our mom). He is bitter ever since he found out that we were born "out of wedlock" even though our parents did eventually get married.

Dad died in 1996 and the will was probated the same year. In the will he left everything to mother. My brother is trying to invalidate the will mainly so he'll have "something to leave his son". He is not a pleasant person to be around and has had drug and alcohol issues all his life. I'm just afraid of what he might do when he finds out everything is legal and he can't take any of moms property.

I definitely appreciate the advice. I'll let mom know what's been said here.
 

justalayman

Senior Member
Totally irrelevant.

The first wife would then have a claim. The will would not be invalidated. The brother would take nothing. Because he'd get nothing, he wouldn't even have legal standing to make that argument.
wrong. totally relevant, at least with the info we have.

We don't know if first wife is alive or not. If first wife is deceased, sonny would be in place to make the claim against the title to the property.
 
Dad died in 1996 and the will was probated the same year.
Then your brother has no hope of winning even if he has a good argument that the will is invalid.

When the will is probated, notice must be given to all heirs (which includes your brother) that the will must be contested by a certain date (measured in days, not years). If it is not contested by that date, then the will is considered valid, probate proceeds, and the notified heirs lose the right to contest the will.

Even if an heir were not notified, then he only has 4 years to contest the validity of the will.
 

justalayman

Senior Member
I don't know if the first wife is alive but we know she did remarry and had a few kids with her second husband.
I hadn't read that this was your full brother before posting that. I was assuming it was a half brother and was going after it due to the relationship with the first wife. Now that I know it was a full brother, I can see where invalidating the will would give brother a share of the fathers estate regardless of whether the marriage was terminated or not.

the thing is, he would have to totally invalidate the will and yes, he would have standing to seek that as he would be a beneficiary of the intestate estate but as cameron has apparently checked the SoL, that ship has already sailed.
 

Worried4Mom

Junior Member
Then your brother has no hope of winning even if he has a good argument that the will is invalid.

When the will is probated, notice must be given to all heirs (which includes your brother) that the will must be contested by a certain date (measured in days, not years). If it is not contested by that date, then the will is considered valid, probate proceeds, and the notified heirs lose the right to contest the will.

Even if an heir were not notified, then he only has 4 years to contest the validity of the will.



I hadn't read that this was your full brother before posting that. I was assuming it was a half brother and was going after it due to the relationship with the first wife. Now that I know it was a full brother, I can see where invalidating the will would give brother a share of the fathers estate regardless of whether the marriage was terminated or not.

the thing is, he would have to totally invalidate the will and yes, he would have standing to seek that as he would be a beneficiary of the intestate estate but as cameron has apparently checked the SoL, that ship has already sailed.
That is a huge relief. My mother will be very relieved to hear this. Thanks a lot everyone!
 
wrong. totally relevant, at least with the info we have.

We don't know if first wife is alive or not. If first wife is deceased, sonny would be in place to make the claim against the title to the property.
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.

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

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