Will and Safe deposit box question in Virginia

[derrickinva]

I live in Virginia and my father has a safe deposit box which he put me on and gave a key a couple of years ago. Three weeks ago he found out that he has cancer in his lungs and brain. He had Gamma knife radiation surgery on Friday and signed a will on Sunday giving his girlfriend all of his assets (I'm sure this includes contents of safe deposit box). What would happen if I accessed safe deposit box and took contents prior to his death? How difficult and what would be the process to contest the will?

 

[Dandy Don]

You would be charged with theft/stealing.

We can not see the exact terminology used in the will, so no one on a message board can tell you how difficult your contesting of the will would be. Why would you want to go against your father's wishes and what reason would you have for wanting to contest the will? It would be very expensive for you in legal fees and not worth the effort.

 

[derrickinva]

You would be charged with theft/stealing.

We can not see the exact terminology used in the will, so no one on a message board can tell you how difficult your contesting of the will would be. Why would you want to go against your father's wishes and what reason would you have for wanting to contest the will? It would be very expensive for you in legal fees and not worth the effort.

Why would I be charged with theft/stealing if he put my name on the box and gave me a key to access? Years prior to his declining health he told me when he dies to access the safe deposit box and split with my sister. He has brain cancer with two large spots on his brain stem which has caused him to have a difficult time with thinking, talking walking and sight. Two days after brain surgery his girlfriend's friend makes up the will for him to sign. This doesn't seem weird and something that should be contested?

 

[Dandy Don]

Thank you for your explanation.

In your original posting you did not mention the fact that girlfriend made the will for him. You need to suggest to your father that he ask a probate attorney to examine the will to make sure it expresses his true intentions and to see if it meets all legal requirements of his state (is it witnessed by the proper number of witnesses?, etc.). The will should be what HE wants, not what girlfriend wants. Is it possible that he wanted his children to share in some of his assets, or are there not much assets to be concerned about to begin with and he doesn't mind girlfriend getting what she is getting? The fact that he mentions the safety deposit box in the will but has also designated you as a beneficiary or co-owner on the account card is a little bit problematic, although your father probably didn't realize it. The beneficiary designation will override the will and the safety deposit box contents will be yours, no matter what the will says, and you can visit the bank safety deposit vault right now to ask them about their policies/procedures to confirm that this is in fact the case.

If you don't want your father to change the beneficiary designation with the safety deposit box to name the girlfriend as beneficiary of that, then maybe you don't want the lawyer to discuss the contents of the will if you want to leave things as they are with YOUR name as beneficiary of that.

 

[Zigner]

Why would I be charged with theft/stealing if he put my name on the box and gave me a key to access? Years prior to his declining health he told me when he dies to access the safe deposit box and split with my sister. He has brain cancer with two large spots on his brain stem which has caused him to have a difficult time with thinking, talking walking and sight. Two days after brain surgery his girlfriend's friend makes up the will for him to sign. This doesn't seem weird and something that should be contested?

The items in the safe deposit box don't magically become yours just because you have a key and are allowed to access the box. (ETA: PLEASE DISREGARD THE PRIOR STATEMENT. I'M NOT AS CONFIDENT NOW ABOUT THIS STATEMENT AS I WAS WHEN I WROTE IT.)



Do you have any other evidence that he wasn't mentally competent when he signed the will? (Here's a hint: The doctors and nurses in the hospital will have a pretty good idea of what his mental state was on that day.)

 

[latigo]

. . . . Do you have any other evidence that he wasn't mentally competent when he signed the will? (Here's a hint: The doctors and nurses in the hospital will have a pretty good idea of what his mental state was on that day.)

I think it needs to be mentioned that a person can be suffering from some debilitating disease of the mind and/or diagnosed as mentally impaired and yet possess "testamentary capacity". The requisites for the latter being minimal. Briefly, that he was aware of the consequences of his act.

The OP might have a stronger footing challenging the will, when and if presented for admission to probate, on the issue of undue influence.