Step father's testament in mother's will

[betaforce]

I received a copy of my mother's will, printed & signed in the state of New Mexico. Most sections of the will, were liquidation of Real Estate and other assets, and for such funds to put into the Residuary estate. The problem is in the section called Residuary estate. I will substitute initials for proper names in the following: "Section 5.3 Residuary Estate: I hereby bequeath and give the remainder of my estate to my wife. Should she not survive me, to my daughter M.R. Should she not survive me, to my daughter T.G. ...". My mother never had a wife, or any daughters. However, her husband had a wife, and 2 adult daughters with those initials, from a previous marriage. Although I paraphrased for this post, the section is an exact copy of the section in her husband's will. Her husband died 23 days before she did.
Needless to say,I filed a challenge to the validity of the will. The attorney who copied the husband's bequest into his wife's will, is representing the predeceased husband's daughter M.R. When the question about my mother's alleged wife and daughters came up, the attorney said, "Oh, that was just a Typographical Error. Your mother intended to give her estate to M.R. Of course, I would expect M.R.'s attorney to make that claim.
The questions are: If there is testament in a will, that is confirmed to be from other than the testator, is the will valid?
If the one signing the will, couldn't understand that she had no wife or daughter, at the time she signed it, did she have testamentary capacity.
If she did not see the erroneous testamentary, because her husband wouldn't let her read the will before signing it, would that be undue influence?
Could the 3rd party testament, be grounds for a fraudulent will?

 

[Zigner]

Sorry - this forum is for US law matters only.

 

[Dandy Don]

Is your mother's will currently being being probated in New Mexico?

Has her husband's will been probated yet?

Are you filing your challenge to this will yourself, on a pro se basis? In a matter of such importance, why would you not have consulted with and/or hired a probate attorney in New Mexico to handle this matter on your behalf?

What was your mother's mental competency at the time she signed the will? Would she have been strong enough emotionally to say that she did not want to sign the will if she truly didn't want to sign it, or was she coerced by someone to just go ahead and sign it without even reading it?

The other side's argument that it was a "typographical error" is extremely weak and won't stand, but you need an attorney willing to challenge and argue against this aspect.

 

[Taxing Matters]

The questions are: If there is testament in a will, that is confirmed to be from other than the testator, is the will valid?

That error by itself generally would not invalidate the entire will. It is possible, however, that the particular copied provision would be struck from the will by a court. It doesn't have to be all or nothing. What the court would do would depend on the evidence presented as to the testator's intent.

Those disadvantaged by the provision need to see a probate attorney for help in challenging it. If you filed the challenge without a lawyer (pro se) that will put you at a disadvantage when going up against the lawyer representing the other side.

 

[betaforce]

I have an update. I just received a copy of her husband's will from the District Court, and all bequests (with the exception of $20.00 in cash) are exact copies from her husband's will. Such bequests indicate that he drafted her will. My mother had a medical condition that made her dependent on her husband's care the month that the will was dated in 2013. The aforementioned will, had drastically different bequests than her will made a year prior. It appears that the 3 factors to flip burden of proof concerning Undue Influence were revealed.
Even more violations. The deed for the residence was Joint Tenancy with right of survivorship, but the personal representative listed 50% of the residence, in each estate. I notified the P.R. and her attorney that my mother exceeded the 120 hour survivorship for her and her estate to own the entire residence. The P.R. was given 5 days to correct the inventories to be compliant, truthful, and accurate. The attorney representing M.R., is the one who printed the will with the husband's bequests. I turned a report to the Disciplinary Board of the state's supreme court, because the attorney who printed the will, will presumably be a witness defending the will, but is simultaneously advocating for a specific heir, in the same case, in violation of 16-307 of the Rules of Professional Conduct.
NOTE: only a small fraction of the evidence is listed in the posts.

 

[Litigator22]

I received a copy of my mother's will, printed & signed in the state of New Mexico. Most sections of the will, were liquidation of Real Estate and other assets, and for such funds to put into the Residuary estate. The problem is in the section called Residuary estate. I will substitute initials for proper names in the following: "Section 5.3 Residuary Estate: I hereby bequeath and give the remainder of my estate to my wife. Should she not survive me, to my daughter M.R. Should she not survive me, to my daughter T.G. ...". My mother never had a wife, or any daughters. However, her husband had a wife, and 2 adult daughters with those initials, from a previous marriage. Although I paraphrased for this post, the section is an exact copy of the section in her husband's will. Her husband died 23 days before she did.
Needless to say,I filed a challenge to the validity of the will. The attorney who copied the husband's bequest into his wife's will, is representing the predeceased husband's daughter M.R. When the question about my mother's alleged wife and daughters came up, the attorney said, "Oh, that was just a Typographical Error. Your mother intended to give her estate to M.R. Of course, I would expect M.R.'s attorney to make that claim.
The questions are: If there is testament in a will, that is confirmed to be from other than the testator, is the will valid?
If the one signing the will, couldn't understand that she had no wife or daughter, at the time she signed it, did she have testamentary capacity.
If she did not see the erroneous testamentary, because her husband wouldn't let her read the will before signing it, would that be undue influence?
Could the 3rd party testament, be grounds for a fraudulent will?

Its difficult to believe that a lawyer responsible for the drafting of that absurdly irrational and unbefitting clause in mother's will would have the unseemly audacity to now be urging that it be revised an remodeled as identifying his client as its beneficiary. (The thickness of hide and balls of a bull elephant come to mind, sans the brain power.)

The bottom line is that the court is powerless to so rewrite the document. The testatrix's intentions as to disposition of her estate must be found within the document itself (the "four-corners rule) and except for clearly defined ambiguities without the aid of extrinsic or parol evidence.

If it wasn't for the obvious fact that the lawyer negligently inserted portions of the husband's will into that of his spouse, it might be reasonably argued that the mother meant stepdaughters rather than birth children. (Especially since the stepdaughters were specifically named.) In other words, the mistakes might fall within one of the exceptions to the four-corners rule thus allowing the admission of extrinsic evidence to clarify/interpret the language employed.

BUT how can it be said that this was mother's true intent and state of mind when it is patently clear that it was the intent and purpose of her acquisitive husband?! A purpose and intent to disinherit all but his descendants.

Also worth of noting here is the evidentiary rule of law that would appear to deny M R's attorney of record the ability to testify as to mother's testamentary intentions as being favorable to his client.

IMO the position of the attorney representing the personal representative of the estate (hopefully you are not attempting to play that professional role) should be that the clause disposing of the "residual estate" must fail because of inherit and insolvable ambiguities and that the residual must be distributed as per the applicable laws of intestate succession. None of which benefit stepchildren.

Good luck, but please don't be so foolish as to avoid seeking professional assistance. The laws of wills are not for the amateur.

 

[betaforce]

UPDATE
Several Months ago, I found a document from the Administrative Office Of The Courts. It was a copy of a Guilty Plea from Jake I Gonzales for the Domestic Violence crime of Assault Against a Household Member. Such guilty plea was during the 4th year of his marriage with my mother. New Mexico doesn't allow previous convictions to be used as a factor in determining future behavior, in the District Courts, but there is no law that forbids using the husband's guilty plea/conviction to determine his victim's submissive behavior. In other words, my mother's will was the effect of a convicted domestic assailant's undue influence. In the latest hearing (trying to get the judge to issue a Summary Judgment) the judge scheduled the formal trial for March of next year, and strongly advised the parties to work on a settlement.
I believe the judge to be biased. A guilty plea/conviction for Domestic Assault, and the Death Certificate showing Alzheimer's related Dementia as the cause of death (along with the copies of the husband's bequests in the wife's will) should have been enough for a summary judgment invalidating the will, several months ago.

 

[Taxing Matters]

I believe the judge to be biased. A guilty plea/conviction for Domestic Assault, and the Death Certificate showing Alzheimer's related Dementia as the cause of death (along with the copies of the husband's bequests in the wife's will) should have been enough for a summary judgment invalidating the will, several months ago.

No. Summary judgment would not be appropriate for that. There needs to be a trial in which all relevant evidence is properly admitted – including any evidence that the opposing side has to offer against undue influence or incompetence — and the the fact finder then determines what weight to give each of the evidence and decide from all the evidence submitted what the facts are. Summary judgment is only appropriate when there are no contested material facts before the judge.