Stepfather changed my mother's will

[Lef_tOut]

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

My mother and stepfather's will stated their estate would fall to the other spouse in the event that one of them passed away before the other. It further stated that after the surviving spouse passes away, the estate was to be equally divided between us four children - my mother's 3 children and her husband's one child. My mother passed away 4 years ago, and now I discovered that my stepfather has cut me and my sisters out of the will. He now has a new will that leaves his daughter everything. Is this legal? Does he have the right to change my mother's wishes like that? I could understand him giving his daughter his half of their estate, but what about my mother's half?

 

[Ohiogal]

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

My mother and stepfather's will stated their estate would fall to the other spouse in the event that one of them passed away before the other. It further stated that after the surviving spouse passes away, the estate was to be equally divided between us four children - my mother's 3 children and her husband's one child. My mother passed away 4 years ago, and now I discovered that my stepfather has cut me and my sisters out of the will. He now has a new will that leaves his daughter everything. Is this legal? Does he have the right to change my mother's wishes like that?

Yes he does. He inherited all of your mother's property and it is NOW HIS to do with what he wants. He isn't changing your mother's wishes, he is changing his wishes to leave it all to his daughter.

 

[Lef_tOut]

Ohiogal, I truly appreciate your response and trying to help me. I think perhaps I need more from someone. While I understand what you are saying, I find it hard to believe it is that simple since my mother did specifically state her wishes, and now his wishes completely negate hers. That makes no sense to me. Even if it is legal for him to do, I'd like for someone to help me understand why and how it is that her wishes are no longer valid. As both being owners of the estate, she had a right to say what happens with her half at least, and that is what she did. Thank you again for trying to help me though.

 

[anteater]

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

My mother and stepfather's will stated their estate would fall to the other spouse in the event that one of them passed away before the other. It further stated that after the surviving spouse passes away, the estate was to be equally divided between us four children - my mother's 3 children and her husband's one child. My mother passed away 4 years ago, and now I discovered that my stepfather has cut me and my sisters out of the will. He now has a new will that leaves his daughter everything. Is this legal? Does he have the right to change my mother's wishes like that? I could understand him giving his daughter his half of their estate, but what about my mother's half?

The only possible answer is: Maybe; maybe not.

It is possible that a joint will can be considered a contract. However, the law is generally reluctant to restrict the ability of the survivor to choose his/her own testamentary wishes and requires fairly rigorous evidence that the intent was to create a contract. Michigan's statute states:

700.2514 Contracts concerning succession.
Sec. 2514.

(1) If executed after July 1, 1979, a contract to make a will or devise, not to revoke a will or devise, or to die intestate may be established only by 1 or more of the following:

(a) Provisions of a will stating material provisions of the contract.

(b) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract.

(c) A writing signed by the decedent evidencing the contract.

(2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Since your stepfather is still alive, I don't see that you have any standing to pursue an action now. However, you may want to take a copy of the joint will and consult with a Michigan probate attorney for an opinion.

 

[davew128]

Sounds more like a testamentary trust to me and no dad can NOT change the terms of it.

 

[ecmst12]

Which of course no one can know without reading the documents in question.

 

[anteater]

Sounds more like a testamentary trust to me and no dad can NOT change the terms of it.

No, a joint will is not a testamentary trust. Although one could say that joint wills are meant to act somewhat like a trust.

Unless it can be shown by the evidence that Mom and Stepdad entered into a contract to make the joint will irrevocable upon the death of one or the other, then Stepdad does have the ability to revoke the joint will and create his own testamentary documents. Without examination of the joint will, and possibly other pertinent documents, by a knowledgeable Michigan attorney, it isn't possible to say one way or the other.

 

[curb1]

This is really a common problem/situation. It is a primary reason why estate planning is so important.

What did "stepfather" say when you asked him about this? You did ask, didn't you?

 

[tranquility]

While I completely agree with anteater, I also agree with Ohiogal. The will language seems to give it to him. The fluffery does not seem something that will be enforced. But, see an advocate who will fight for you. Who knows what negotiations can ensue?

 

[commentator]

My husband and I made wills, leaving each other everything in the case one of us goes first. Then, later, when the surviving person passes, there are specific instructions for what the division would be between our children and stepchildren. At the end of all this, the attorney said, "You do realize that unless you both pass away at the same time, this is just instructive, don't you? That as soon as one of you were to pass away, the other spouse could take everything you both own now and run off to Tahiti and blow it all!"

Once your mother left everything to your stepfather, that's about as much control as she had on it, unless there was some extremely specific language in the will, as others have said. But my question is, how will you feel if your stepfather does away with all the money before he passes away? What if he has to go into skilled nursing care and it all gets taken for his care?

 

[anteater]

While I completely agree with anteater, I also agree with Ohiogal. The will language seems to give it to him. The fluffery does not seem something that will be enforced. But, see an advocate who will fight for you. Who knows what negotiations can ensue?

You can't have it both ways, Tranq.

Ohiogal made a pretty absolute statement.

I am saying, "Wait just a minute..." The contractual nature of joint wills has been upheld and enforced if certain criteria are met. There just isn't a way to say in a particular situation without a review of the joint will within the context of the applicable state's case law.

 

[tranquility]

The "wait just a minute" is because the will does not seem entirely clear. I suspect it is Dad's to do with as he pleases. But, the question can be complex and many laws can interact which is why your thought to see an attorney is a good one.

As a matter of law, I'd give it to dad. In equity? Maybe the OP has some rights. Bet me, that with representation, this will not fall to the courts but to negotiation. Until the OP gets serious (and hires an attorney), nothing.

 

[TrustUser]

i find this one interesting. please let us know how it turns out.

ant and tq - how common is a joint will ?

i suspect that the op has a good case, though.

we are talking about one and the same document. this same document that gave the father the estate, also gave it to the 4 children afterward.

if ant is correct, and there has been any legal precedence - then i would rule for the op, if i were judge.

as judge, i would ask myself why was a joint will made, in the first place ? about the only answer that i could come up with is that both parties wanted to agree, so that the survivor could take advantage by giving everything to his/her kids.

this is just one of the many reasons why I LIKE TRUSTS. there would be no question about it.

as others have already said, i would strongly urge the op to see a lawyer with that sort of specialty. it seems to me that the op might have a reasonably strong case.

of course, nothing can prevent the stepfather from spending it himself.

but if i was the op, i would not say much of anything to the stepfather. i think that can only hurt the op.

no sense giving the stepfather any further reason to take any further action.

there is probably nothing that can keep the stepfather from simply placing most of his funds in his own name, with his kids as beneficiaries, etc.

imo, the op's best chance is to contact a lawyer to find out what sort of process the op needs to go thru, but do nothing else until stepfather dies. and then immediately start whatever the op can. at that point, the op will want to have an exact plan in action, not be contacting attorneys to see what might be done. time will be of the essence.

 

[TrustUser]

the survivor COULD NOT TAKE ADVANTAGE

 

[anteater]

The "wait just a minute" is because the will does not seem entirely clear. I suspect it is Dad's to do with as he pleases. But, the question can be complex and many laws can interact which is why your thought to see an attorney is a good one.

As a matter of law, I'd give it to dad. In equity? Maybe the OP has some rights. Bet me, that with representation, this will not fall to the courts but to negotiation. Until the OP gets serious (and hires an attorney), nothing.

OK, we'll call this one a draw.

But it sounds like the stepfather is still alive. Consulting with an attorney now is a good peace of mind, know what the options are kind of thing. But there isn't much the OP can do until stepfather dies and the revised will is submitted for probate.


And I notice TrustUser lurking. Yes, my friend, this is a situation where a trust would have been better!