Thank you [email protected]

[evelyn]

I called the lawyer in Fremont, California today, and he said he was waiting for the Bank of America to send something so the accounting would not be ready by January 20th, 2001, my deadline, and our family wanted to see the accounting to make up our mind as to whether to contest or not.

I live in Simcoe, Ontario, Canada. I hired a lawyer immediately upon my Aunt's death in my hometown and knew that I'd have to hire a lawyer in California eventually. My sister-in-law, my brother's wife, who is a litigation secretary in Orillia, Ontario, Canada said another ex-boss of hers knew a lawyer in San Francisco and we will get him, but he cost $5000 US retainer fee, $350 US per hour, travelling and motel expense, etc. So we didn't get him as Hayward, California is where the court is and Fremont, California is close to there. So I called around and got what I seemed was a decent lawyer and our family decided to have him send the letter to the Step-son's lawyer and he never got around to it but I remember him mentioning to me that I could send it, so I did and it arrived November 27, 2000 to the Step-son's lawyer in Fremont, California. December 29th, I called to see how things were coming along and gave my fax number and I know how busy lawyers are but he knew the time limit, and said something to the effect that he'd have it out in the mail shortly. Today, he said, oh I'm waiting for something from the Bank of America as we wanted an accounting of all her bank accounts in the Schedule A to the Trust as we have no idea how much was in there.

My Aunt died at 90 years of age at St. Rose Hospital in Hayward, California. My father, my Aunt's brother was left $50,000 US but he died January 26, 1994 so his share was to go to my mother; my brother, my Aunt's nephew was to be left $10,000 US and I was to be left $10,000 US. Each of this step-son's 4 daughters were left $10,000 US and all the rest was left to the Step-son.

I can't go to the Step-Son's lawyer to his office as he represents the Step-son but he has answered my questions, but today I was mad and left a message on his answering service, how long does it take to push a fax button? He said, I always twist things; he doesn't even know me and I documented everything he said and then he added, maybe your Aunt didn't want to tell your mother and your brother and yourself that she changed her will. I said, I doubt that Mr. Holmes. I know my Aunt and she loved us and was very concerned her last visit to Canada in 1995 that we were left our share from her in her will. After 1995, her mental state deteriorated as we always ended talking to a nurse or aide at the Retirement Home she lived in. In 1996 in the fall, my brother and wife visited her and they cried after that visit to see her mental state. An amendment to the Trust is signed in August 1997 at 87 years of age, no notary stamp, no witness and a feeble signature. If you read, that amendment to her with not our names in it and numbers, she'd sign anything.

See, we don't know how much is left, $30,000 US the Step-Son's lawyer mentioned to my sister-in-law at the beginning; well, we wondered where did her $165,000 US go from the sale of her house in Alhambra and this step-son invested her money and how much money did he make for her and how much was in these bank accounts.

There were 8 of us in the Trust; my father, my Aunt's brother, if he died, then to my Mother; my brother, my Aunt's nephew, and myself, her namesake and niece; this step-son's 4 daughters and the step-son.

So our family feels, Step-son already used up, spent everything else as he had Power of Attorney before and now there is only $30,000 left in the estate, so why should he get more. I care about my father's share, as he is dead and gone and can't fight for his share which is now my Mother's share and my Mother cared for my father and Aunt's father for 9 1/2 years in our home years ago and did it from the kindness of her heart and it would be nice for my 77 year old Mom to inherit $ which I feel she deserves now that I am an adult and realize how much work it must have been to have an overnight visitor for 9 1/2 years.

Evelyn

 

[ALawyer]

If she lacked mental competence she could NOT amend her will or trust. But the test for competence is not all that major and if she had a lucid momemnt at the time of amendment that could suffice.

 

[advisor10]

(01-20-2001)


DEAR EVELYN:

Try to get an attorney to find out:

(1) IF the will has been filed at the county courthouse yet.

(2) WHO THE ESTATE EXECUTOR is.

(3) WHETHER OR NOT THE ESTATE EXECUTOR was required to get an EXECUTOR'S BOND. This is similar to an insurance policy that would allow any beneficiaries to get their money from the bond insurance company IF the estate executor or someone else misappropriated funds or spent monies that they were not entitled to. Many states and counties require this to be done, but since I don't live in California, then I don't know if it's required there or not, but I would think that it should be.

I hate to see anyone taken advantage of and treated so shabbily, whether it's a greedy step-son or an attorney who doesn't respond when clients really need helpful assistance. I know it's hard to get information when you live out of the country, but I do applaud your desire to want to see the right thing done and to recover anything if possible.

The fact that so many people's shares of the estate were deleted by the amendment is very suspicious, since her wishes to include you all were well known. I would focus in on comparing her signature on that amendment document with other documents she signed to establish validity. Approximately what year did she sign this amendment and were there official witnesses to this (are the witnesses signatures also there), or was the amendment just noted by your aunt's initials only?

Please don't think that the January 20 deadline is an absolute one, there may be still be a way that you can contest the will or at least get the monies from the bond company. Sometimes the mention of a deadline is just a scare tactic. Any lawyer's actions can be reviewed at any time and if wrongdoing has occurred, steps can be taken.

If I were you, I would try to get copies of everything that has been done in this probate case (a copy of the will and everything else that is in that file) so you could have a clearer understanding of what has been done and just what is going on, but I understand that that might be difficult if the estate has not been closed yet.

If you show some determination and patience and don't just give up, then there may be a way for you to at least recover SOMETHING for all of your efforts.

SINCERELY,

[email protected]

 

[advisor10]

(01-22-2001)


DEAR EVELYN:

It seems you may have been poorly advised by the attorney. Instead of waiting for the financial documents to come in from the Bank of America, he should have used the 120 day waiting period to focus in on the errors in the Amendment, and at least should have informed the court that you intended to challenge the will. However, I can certainly understand his desire to find out first if the estate was worth his time and effort to fight for (did he ever receive a copy of the amendment to look at?), and also complicating your situation is the fact that you live out of the country.

What you can do now is to write a one-page letter (containing a brief explanation--no more than 4-5 paragraphs) of your situation, to the following address
(Hayward, CA is in Alameda County):

ATTENTION: PROBATE JUDGE
ALAMEDA COUNTY
1221 OAK ST, 3RD FLOOR
OAKLAND, CA 94612-4222

State that:

(1) Mention the aunt's name and the month/year she died,

(2) You were not informed by your attorney that you could inform the court of your intentions to contest this will,

(3) Your objection is that there were NO WITNESSES to her
signature and that this was HIGHLY IMPROPER AND ILLEGAL.
You wish to question any signature or any initials that may appear on the amendment, because it is possible she didn't make it or she was aided by someone who held her hand. The signature must be compared with her signature on other documents.

(4) You and other people visited your aunt and personally witnessed that her mental condition had deteriorated (mention the year that the visit took place), and that your aunt had specifically informed you and the other people of her intentions for them to be included and that it is highly suspicious that an amendment was created that essentially and greedily eliminated our share of the inheritance.

Mail it as soon as possible--forget about the deadline. Your information is important enough that the Probate Court needs to know about it when reviewing the estate before it is finally closed.

It is possible that you may not be able to recover anything, since attorney fees and estate debts or other expenses might eliminate the remaining $30,000 and you would have to pay some very expensive lawyer fees upfront in order to mount a defense to contest the will (which you might not be able to afford and it might not be worth it). But I do applaud your desire to want to do the right thing and standing up for yourself and your relatives.

SINCERELY,

[email protected]