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will or prenup?

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K

KYPICKLE

Guest
What is the name of your state? kentucky
:confused:
Here's the pickle. A man and woman, let's call them Joe and Mary, are in a relationship, not married and living together. Joe makes out a will leaving everything to his adult son, w/ Mary having right to occupy the home and it's lot until she remarries or dies.

Two years later they decide to marry. An Antenuptial agreement is done and signed by both. The contract states that in the event of Joe's death she is to move out of the residence in 60 days.

A few more years down the road during the month of August Mary moves out of Joe's and into her daughter's home that is next door to Joe and on his property. Next month in September the trailer is moved to property owned by Mary. The two were still cordial and still visited each other, she only visited when this were so rough, telling how she couldn't pay all her bills. Anyway...

The following January on the 7th Joe died suddenly. The will, done first says Mary has "lifetime estate" and the Prenup done later and signed by Mary, says she is to move out in 60 days. My question is- which document takes precidence? Does the fact that she had already moved out bear any weight?
 


Dandy Don

Senior Member
Please clarify the situation by explaining why you are asking or on whose behalf--are you in favor of Mary getting everything she is entitled to receive from this estate or are you hoping that she will be at a disadvantage and looking for the least favorable outcome for her?

Are you related to Joe and are you also a beneficiary in Joe's will?
 
K

KYPICKLE

Guest
The reason I didn't specify who's "side" I am on is to get opinions on which readers think by law or opinion should be more just. I can't get an unbiased opinion because everyone I ask know my standpoint.

Why I am asking? Mary has seen a lawyer and that lawyer sent letter to Joe's heir stating she has told that the heir has refused to let her take possession of the mobile home and lot and needs to immediately give her possession on the residence. She has never contacted the heir to even ask for such in order for the request to be refused.

That being said... I am the wife of the sole heir to Joe's estate. Factors that will probably not be shown in court is that Mary married Joe to use him for his finances. She has gotten more than her share already. None of which we can't prove she owes to the estate because she will just argue it was a gift. Besides she had moved out and hadn't lived there for five months before his death.

I am just trying to find out if there is any presidence for these documents (will and prenup). Is one any "more legal" that the other? My lawyer claims his "gut feeling" tells him we will lose. I don't know if I want him to represent us if he doesn't feel he can win. Any thoughts on that? Can you offer a second opinion?
 

Dandy Don

Senior Member
It's hard to know how this one will end up.

The will is going to be applicable and will probably take precedence. Joe made a mistake in not getting his will corrected/revised to agree with the antenuptial agreement if it was truly his intention for Mary to be out in 60 days and NOT have the lifetime estate.

Don't blame your lawyer for only honestly giving you his professional opinion and for being bluntly honest with you--it's not HIS fault that this is not what you want to hear. You will probably be told the same thing by another attorney you consult, but you really do need to be getting a second opinion on this.

Your attorney needs to at least bring up the antenuptial agreement in probate court and mention the 60-day deadline so that at least the judge can know about it.

Does the antenuptial agreement give her any type of financial or property benefits?
 
K

KYPICKLE

Guest
Well... We did the probate before we got a lawyer. Didn't seem to be that big of a deal. In retrospect I'm thinking the will should have been "lost". I'm not sure if anyone else had a copy other than the ones we had. At the time we were worried she could come out with more that just the lifetime estate if we didn't. We did take the prenup with us to the probate so the judge could see it. He commented that we had better hold on to that.

Mary gets no other benefits whatsoever in the will or prenup. Joe was a lonely elderly man in need of companionship. We are all shocked she got out of him what she did. It is our true belief that the prenup was meant to revoke/replace the will. When Joe let his son read the will, his son told him he was unhappy with it, didn't like it at all because it didn't stipulate that "she" couldn't bring in another man to live with her, just not remarry. Joe would never do anything of this magnitude that would not meet with our approval. His son meant everything to him. That's why he did a prenup, to change the way things were to be. I comprehend the standpoint from the lawyer. But what are the chances that a jury will see it that way. Won't they be the one to decide if it goes to trial? I know I'm biased but I don't see how anyone could go with the document that was older. It seems he obviously changed his plans.

There was a different lawyer to do the will and the prenup so the later of them may not have know to advise him to do another will. I am going to attempt to contact that lawyer and see if there were any notes made regarding the writing of the prenup that might help us. Can I do that?

She wasn't even living there when he died. His mother was very ill for some time and died exactly two weeks before he did. He would have been in no mental state to redo his will after Mary moved out. She had already left him. Is it considered "legal separation" only if there has been paperwork filed?

I can understand the logic of the words but can't comprehend or better, beleive the idea that the will can take presidence when she signed this "contract". Isn't a contract enforceable by law? Isn't a will just one man's wishes, not law?

Is there a good place on the web that I post this epic case and ask lay people to give their opinions? I don't mind to give the whole truth, of course if it goes to court i'm positive she'll bring in the lies and falsehoods.

Sorry to take up so much space and time
Thanks for your help.
 

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