(Wills) Father states in will, "has no children." But this is false info. How is this legal?

[zddoodah]

i dont know much about actual court cases, so i wont argue with you on what would happen. only on what should happen, and what would happen if i was judge.

Well...this tells me that you're not a lawyer, and I'm at a loss to understand the value of a non-lawyer's statement about what he/she would do if he/she were a judge based on never having seen the document in question and not knowing anything about what testimony people would give.

it isnt just about who gets stuff. it is also about who doesnt get stuff. let me repeat - THERE IS A HUGE RED FLAG WAVING - the girlfriend's kid gets everything, and the father's kid gets nothing ?

For starters, the OP told us that the will says the estate goes to the girlfriend, not the girlfriend's kids. Also, it's not at all uncommon for a person to exclude a 40+ year old child from inheriting.

i daresay when that happens, there is almost always unfair play going on.

Translation: you're making stuff up without any factual evidence.

like i said, there are really 2 conclusions that are likely - 1) the son was not liked by the father OR 2) the girlfriend had IMPROPER influence.

I'm confident that, if I spent more than ten seconds thinking about it, I could think of half a dozen other, plausible explanations.

so let me repeat - THERE IS A HUMONGOUS RED FLAG WAVING AROUND. and if i was judge, i do not like red flags, cuz i know they are almost always signs of foul play somewhere along the line !!

Subjective and metaphorical red flags don't get anyone anywhere. Undue influence is never assumed. It has to be proven, so, in the absence of evidence beyond what the OP has told us about, the OP has little on which to hand his hat.

 

[Taxing Matters]

so let me repeat - THERE IS A HUMONGOUS RED FLAG WAVING AROUND. and if i was judge, i do not like red flags, cuz i know they are almost always signs of foul play somewhere along the line !!

In Maine the person challenging the will must prove that by clear and convincing evidence, a standard that is harder to meet than the preponderance of the evidence standard that applies in most civil cases. Undue influence in Maine is defined as:

influence in connection with the execution of the will, and operating at the time the will is made, amounting to moral coercions, destroying free agency, or opportunity which could not be resisted, so that the testator, unable to withstand the influence, or too weak to resist it, was constrained to do that which was not his actual will but against it.​

​

Estate of Washburn, 2020 ME 18, ¶ 17, 225 A.3d 761, 767. So a successful contestant has to show more than just that something is strange, or that "red flag" you mentioned. There is going to need to be some evidence of coercion or unusual influence to succeed. And it needs to be clear and convincing evidence. The Maine case law allows for certain inferences to be made in specific situations that would help make the case for undue influence, but none of those circumstances appear to exist here.

Undue influence cases are hard to win when the beneficiary is a close relative, spouse, or longtime lover/friend because there is often a lack of evidence to show some kind of coercion or unusual influence that is good enough to meet the clear and convincing standard of proof. Certainly here the will stating he had no children when, in fact, he did can help a contestant challenge the will, but that alone won't win the day. Not even close.

 

[quincy]

... For starters, the OP told us that the will says the estate goes to the girlfriend, not the girlfriend's kids ...

... Subjective and metaphorical red flags don't get anyone anywhere ...

It was said previously that the will said the girlfriend’s son would inherit the father’s estate if the girlfriend predeceased him.

“Subjective and metaphorical red flags” can get someone to an attorney for a personal review of the matter. And that would be (and has been) my recommendation.

 

[quincy]

... I do suspect that the girlfriend assisted in the drafting. He appoints her as executrix of the estate. And the will states "If she should not survive me, then I give all my estate to (name of her eldest son)" (I'll admit -- that hurt)....

The will stated that the girlfriend’s son inherits if she doesn’t.

 

[TrustUser]

For starters, the OP told us that the will says the estate goes to the girlfriend, not the girlfriend's kids. Also, it's not at all uncommon for a person to exclude a 40+ year old child from inheriting.

did you actually read what he said. if the girlfriend dies first, everything goes to HER CHILD.

it is uncommon for a person to exclude his 40+ year old child. just how in the hell old do you think most children are, when they inherit ? they are probably older than 40 when their parents are both deceased

 

[quincy]

did you actually read what he said. if the girlfriend dies first, everything goes to HER CHILD.

it is uncommon for a person to exclude his 40+ year old child. just how in the hell old do you think most children are, when they inherit ? they are probably older than 40 when their parents are both deceased

InfoTime also said he and his father had a good relationship.

I don’t know why others aren’t seeing what we’re seeing, TrustUser. Haha.

 

[TrustUser]

tm,

i am not making any statement about the difficulty of winning the case. but i think it merits a review, cuz the likelihood of foul play is high. that is my point. and i think quincy's point, as well.

i have a suspicion that the op has a better chance though, than others on this site are giving him. there is simply too much that doesnt make sense, if the father really didnt want his son to have anything.

most second marriage couples leave stuff to both sets of kids, evenly - that is standard, just like giving to your own kids evenly, is standard.

when a person wants to do something non-standard, then they better make damn sure that it looks like it is their intention.

the judge's real goal is to make sure that the testator's wishes are carried out. and this case makes those wishes VERY SUSPECT. which is why i give the op some sort of real chance to present his case, and have some success with it.

 

[Taxing Matters]

the judge's real goal is to make sure that the testator's wishes are carried out. and this case makes those wishes VERY SUSPECT. which is why i give the op some sort of real chance to present his case, and have some success with it.

A will executed by a competent person is the best expression of the testator's intent. That's why it is difficult to overcome that. You are assuming too much here. All we really know are the following facts:

(1) The testator (OP's father) was age 66, competent, and in good health when he died suddenly from a head injury.
(2) The testator's will has one incorrectly stated fact in it: that the testator had no children.
(3) The testator's will gives his entire estate to his girlfriend (which I will tell you right now is not at all uncommon these days when far fewer couples, particularly after their first marriages, elect not to marry) and should she predecease him the estate would go to the girlfriend's son.

That's it. And it's not much. You seem to be focusing, as you've done before, on the notion that most people give their stuff to their kids (which you call "standard") and when that doesn't happen you consider it suspect. But as estate planning is one of my areas of practice, I can tell that it is not so much standard today that people give their stuff to their kids or other close relatives like they did in decades past. Sure, a lot people still do that, but there are sizeable number of people out there who don't. I've seen plenty of clients who have wanted to do other things with their stuff. Indeed, I myself am not giving the bulk my things to relatives — they don't need it — and instead giving it to a longtime friend.

We are missing a lot of information here. For example, how long has the testator been involved with the girlfriend? How old is her son and what needs might that son have? He be disabled and could use help that the OP does not, for example. What was the testator's relationship with the girlfriend's son? Perhaps they had a fairly close relationship or at least the testator particularly liked the son. Or maybe he put in the gift to the son to placate the girlfriend but figured he'd simply change the will if she died before him. I've seen that done, too. The answers to some of these questions would help inform how an undue influence case would go.

But the most important thing we are missing is any indication that she used coercion or some kind of overpowering influence that would be sufficient to overcome all resistance and make the testator do something he really did not want to do. That is what the OP would have to prove in an undue influence case, and it must be done with clear and convincing evidence. And as it stands right now we have nothing to suggest that coercion or overpowering influence was used. Without that, the OP cannot win. Maybe with the answers to the questions I asked we might get to start framing a case for that, but with what we know now I disagree with you that the situation is "very suspect" because there could well be reasons why the testator wanted the will set up that way. And because right now we have nothing to suggest that coercion or some overpowering influence was used I'd say that just based on what we do know the chances of winning are very low. Until you can answer the question: "what evidence is there that clearly shows coercion/overpowering influence was used" with a compelling answer you don't have a promising undue influence case. You and quincy can be skeptical and think there is the possibility that the girlfriend used undue influence. But that's still a far cry from having what is need to actually prove your suspicions.

 

[TrustUser]

okay, but my suspicions are usually correct. in this case, i stand by them.

as a lawyer, it is your job to try to find excuses for everything, so you can wiggle your client out of trouble

quincy and i just look at the facts, and understand the likelihood of things

and i will leave the discussion, at that

 

[quincy]

I am skeptical enough to recommend InfoTime seek a personal review by an attorney - nothing more, nothing less.

 

[zddoodah]

it is uncommon for a person to exclude his 40+ year old child. just how in the hell old do you think most children are, when they inherit ? they are probably older than 40 when their parents are both deceased

Well...I was 7 and 40 when my parents died, so that's how in the hell old I was (and my best friend was in his late 20s/early 30s when his parents died), but your question is irrelevant and, since I don't have statistics on the subject and I'm sure you don't either, whether it is or isn't "uncommon" is a pointless discussion. Regardless, both of the following are true: (1) what the OP has described is not so uncommon that it necessarily raises suspicion; and (2) suspicion without evidence is useless. And, if you care about anecdotal evidence, I'll tell you that my spouse's mother (who was about the same age as the OP's father when she died) left her entire estate (save for a few trinkets) to her boyfriend instead of her children. While we thought it was a lousy thing of her to do, there was never any suspicion of undue influence or "foul play." The notion that it is so unusual for a 60-plus year old person to leave his/her estate to a girl/boyfriend instead of a child that it warrants suspicion is nothing short of ridiculous.

as a lawyer, it is your job to try to find excuses for everything, so you can wiggle your client out of trouble

quincy and i just look at the facts, and understand the likelihood of things

No. A lawyer's job is to look at facts and evidence and things that can actually be proven and to disregard baseless speculation that isn't supported by any facts.

 

[quincy]

It raised suspicion in me - and I only looked at the facts as they were presented.

InfoTime should seek out an attorney in his area to personally review the will and the facts - unless he wishes to accept things as they are. Apparently the reason why InfoTime came to the forum is because he questions whether accepting things as they are is his wisest course of action.

I think it a mistake to send away InfoTime with a belief that all is hunky dory. No one here can say that.

 

[Taxing Matters]

I am skeptical enough to recommend InfoTime seek a personal review by an attorney - nothing more, nothing less.

Certainly he/she should do that. As I pointed out earlier we do not have all the facts here and it may be that with all the facts there might be some avenue for the OP to pursue here.

okay, but my suspicions are usually correct. in this case, i stand by them.

With all due respect, your suspicions here are based on very little in the way of facts, and the facts we do know don't provide anything that suggest coercion was involved. You are reacting more, I think, with your heart on this one than your head. The judge has to look at whether the will contestant proves his case to the legal standard required. You've not provided any legal analysis suggesting how that case could be made here.

as a lawyer, it is your job to try to find excuses for everything, so you can wiggle your client out of trouble

No, as a lawyer when a client comes to me with a problem like this my job is to provide him/her an objective analysis of his/her situation and advise on how likely it is that he or she would succeed if he/she were to contest the will. We probably don't have all the facts to provide the OP with a firm conclusion of his/her chances to succeed on challenging the will so I agree with quincy the OP may want to consult a probate attorney in Maine. But if we do have all the facts here then the reality is that the outlook would be poor. You need more than one wrong stated fact in a will and the fact that estate is going to a girlfriend of the testator rather than a child to win an undue influence case. You need to the show coercion with clear and convincing evidence to win. What facts do we have to show that here? Nothing. At least so far.

 

[Zigner]

To be clear - the "wiggle your client out of trouble" comment was from TrustUser, not Quincy.

 

[quincy]

Taxing Matters, those are not my words you quoted. I don’t know why the quote box appears in your post as attributed to me. Please change this. Thanks.