Can I contest Father's Will for Undue Influence?

[renee_rn]

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

My dad is very sick with metastatic brain cancer. He was admitted recently for altered mental status and was diagnosed at that time with non-small cell lung cancer with metastatic brain cancer. My dad's wife of 4 years has lied to me since the day she called me telling me my dad was in the hospital. While he was in the hospital his confusion improved but the entire time his wife refused to take him home and told the physicians she was unable to care for him at home. Long story short, I got there and as a nurse myself, insisted that he was going home and could at that time care for himself. She had it set up for him to go to a nursing home for 7 days (the only time insurance would approve) because daddy was outrunning the physical therapists in the hallway when they came to walk him. The social worker could not legally find any reason for him to be sent to a nursing home or even a rehab facility. The wife was doing this all behind my dad's back until I got there and immediately told him. She also while he was in the hospital had him sign a financial power of attorney in which she went and withdrew his IRA.

My dad has been at home and has underwent palliative radiation for the metastatic brain cancer. We were hoping the lesions would shrink some and it would buy us a little more time with him but we learned this week the lesions remain the same, no improvement. He stays confused and is very weak. The wife took him to a lawyer last week and had a Will made. I have been promised a copy but have yet to receive it though was told that her grown children(who I have never met) were included in the Will as well as their spouses. My dad has 3 children of his own. The entire time my dad was hospitalized I never saw any of these step children. I am very upset that now they are included in his estate and I am sure it was her decision to include them. I want to contest the Will once my dad passes but unsure if I have a good case to do so.

Also, my dad has always told me there is a life insurance policy in my name ONLY to pay off my student loans. When my dad first got sick and the prognosis was not good, I was talking to the wife and asked about the insurance policies I knew my dad had. I knew he had a good bit of retirement, the IRA, and 3 life insurance policies. She immediately told me that he lost all the policies when he got sick 2 years ago and was forced to retire. I completely understood that he probably could not pay for them and had to let them go. Just recently in a moment of clarity he told me, "Don't forget about your insurance policy." I told him what I had been told and he was adamant that the policy was good and where I could find it next time I come to his house (he lives 5 hours away). Now I have learned from the wife that this is the only insurance policy left and it is in the Will how it is to be divided (including her children and their spouses). I am not sure how all of this will eventually work out, I have never had to experience anything like this before.

Its difficult enough knowing that your daddy is dying and then being lied to about anything he has from the wife. I can't even talk to him on the phone any longer without her putting it on speaker and listening in. She came into this marriage 4 years ago with NOTHING. The house they live in is the house my daddy has lived in for 30 years and has paid off. Her car is in my daddy's name. My daddy has a brand new truck he paid cash for and I am sure she has titled it in her name.

Any suggestions as to what all I can do? Can I contest the Will now if I were able to obtain a copy?

 

[FlyingRon]

Insurance policies generally have beneficiaries named. Unless it lists the deceased person (or his estate), the will has no bearing on who gets the pay out from it.

 

[HRZ]

Is it a reasonable guess that she took him to lawyer to have a will written that favors her point of view? do you know who picked the lawyer and if she sat in the room with dad and lawyer ?

BTW the legal standard of alertness / competency to make a will is very low ...it varies a bit by state ..but it's darn law.

AS an aside, if Dad has some of his mental marbles he can write a new will with more balanced terms IF he so desires .

IS it probable and can you prove it that at the time she took him to write a will he was so far diminished that he was unable to recognize the objects of his affection ...or whatever the legal standard in GA is?

 

[xylene]

Just an fyi, something you were told is not something you KNOW.

 

[justalayman]

Based solely on your statements there is a good possibility the will would be invalid. Yes you can contest the will onthe basis of undue influence or incapacity. Whether it is fiscally beneficial is something you will have to decide once you see the will.

Sometimes it is not worth the fight and you just let it go. Only you can make that call.

 

[not2cleverRed]

Based solely on your statements there is a good possibility the will would be invalid. Yes you can contest the will onthe basis of undue influence or incapacity. Whether it is fiscally beneficial is something you will have to decide once you see the will.

Sometimes it is not worth the fight and you just let it go. Only you can make that call.

And also dependent on how much is actually left in the estate when he passes. If it's less than 6 figures, then the 3 surviving children could easily spend more on legal fees than they'd inherit if Dad died without any will at all.

 

[adjusterjack]

Can I contest the Will now if I were able to obtain a copy?

No. Wills cannot be contested until after a person dies.

What you can do is have him make a new will revoking the old one (if he is competent). I'm guessing you will have to bring a lawyer and witnesses to his home to accomplish that.

As to the life insurance policy, it's possible (depending on his age) that it was paid up and still good. All you have to do is find it. If he is lucid next time you visit you can ask him for it. If that doesn't work there are a couple of services you can use to try to find a record of it.

http://www.naic.org/documents/consumer_alert_locate_lost_life_insurance_benefit.htm

http://www.mib.com/lost_life_insurance.html

 

[xylene]

Changing the will won't address property and assets that are already titled in the spouses name.

 

[Dandy Don]

One of the biggest favors you can do for yourself is to ask him (when there are no other people in the room) the NAME OF THE COMPANY who he has the insurance policy with and what city/state the insurance company is located in (even if he can't remember the city/state where they are located, just having the name will be enough for you to contact the company yourself to check on the status of the policy). And let's hope and pray that she hasn't used the POA to attempt to change the policy beneficiary designation from your name to hers or someone else's name by asking the insurance company to change it. (If she did in fact request a beneficiary change, you can protest that with the assistance of an attorney.) Also ask him if can remember how he found out about the policy--was it something he purchased at his place of employment or was it bought through a local insurance agent?

Talk to a physician to find out how a mental competency test is done in your state so you can decide whether you want to ask that a mental competency test be done on your father so at least there will be a record of the diagnosis on hand.

 

[xylene]

Talk to a physician to find out how a mental competency test is done in your state so you can decide whether you want to ask that a mental competency test be done on your father so at least there will be a record of the diagnosis on hand.

I have to ask how the competency test would establish anything about his competency at the time of the signing the will, especially given the rapid degeneration possible with brain cancer?

 

[renee_rn]

Is it a reasonable guess that she took him to lawyer to have a will written that favors her point of view? do you know who picked the lawyer and if she sat in the room with dad and lawyer ?

BTW the legal standard of alertness / competency to make a will is very low ...it varies a bit by state ..but it's darn law.

AS an aside, if Dad has some of his mental marbles he can write a new will with more balanced terms IF he so desires .

IS it probable and can you prove it that at the time she took him to write a will he was so far diminished that he was unable to recognize the objects of his affection ...or whatever the legal standard in GA is?

I am for certain that she took him to the lawyer because he cannot drive. And I am quite sure that she sat right there with them and probably lead the conversation. She is very determined that things be done her way and her way only. I cannot even speak to my dad on the phone without being on speaker phone so that she can hear the conversation and make comments throughout the conversation.

I am going to visit this weekend and plan to get copies of the life insurance policy and will. Its just very heartbreaking for me. I have always been very close to my dad and now I cannot even speak to him in private.

 

[renee_rn]

Changing the will won't address property and assets that are already titled in the spouses name.

Right now the most important thing to me is if the life insurance policy lists me as the beneficiary. He has told me for many years about this policy and she told me it no longer existed. He told me a month ago, "Don't forget about the life insurance policy I have that goes to you." I am hoping if I am the only one listed that she cannot claim part of it.

She has not been honest with me since she called me to tell me my dad was hospitalized. I have never had any issues with her until he got sick and then it was like a switch flipped.