Will Contests

[mam_]

My brothers will is now in probate. The date he signed the will is what is in question with our family. He was NOT of sound mind at the time of signing. He was in final stage of cancer. Sedated and having one surgical procedure after another.

The will reeks and reads of his wife's wishes-not entirely his as we know.

What can we do?

There is a first borne son that was given $100.00 nothing more, nothing less. His wife had nothing to do with the son-my brother did.

I have tried to obtain the medical files but the hospital needs her signature on the release--and that is highly unlikely to happen.

We are in need of two questions answered:

1. Sound mind description-legally.

2. His son-what are the procedures to contest this will?

It is not the fact of the money for us but for his son. And the matter that he was NOT clearly thinking. I was there 4 days after the supposed signing and he asked me to look into getting the will drawn up because he did NOT have one.

 

[Michael Wechsler]

I'd ask the court clerk as to the specific procedure of the court your are in but you could contest the will in several ways: (1) legal formalities were not properly followed at the time the Will was signed; (2) the will has a codicil or addition that changes the distribution; (3) the deceased lacked the required capacity or mental faculties when the Will was signed; or (4) that the deceased was subjected to undue influence or was coerced when signing the Will.

If you are questioning the mental capacity of the Will then you would have to show that the deceased did not understand the nature and extent of his property and the manner of distribution of his property. You can prove this in several different ways, especially using circumstantial evidence.

Let's talk about undue influence and coercion. You need to show that one of the beneficiries was able to exercise such influence over the maker of the Will that the maker's real desires were altered. The courts may consider several factors such as (a) illness and old age; (b) whether the Will maker lived in the control and supervision of the beneficiary exterting the undue influence; (c) whether the Will was changed to favor someone not related; (d) whether family members were disinherited; (e) whether a lawyer was hired to draft the will and by whom; (f) whether the current Will replaced a prior Will.

It sounds to me that your brother's condition added to the factor of his own son getting virtually nothing would seem to point well in favor of undue influence, but then again, circumstances vary and we don't have in all the facts here.

Originally posted by mam
My brothers will is now in probate. The date he signed the will is what is in question with our family. He was NOT of sound mind at the time of signing. He was in final stage of cancer. Sedated and having one surgical procedure after another.

The will reeks and reads of his wife's wishes-not entirely his as we know.

What can we do?

There is a first borne son that was given $100.00 nothing more, nothing less. His wife had nothing to do with the son-my brother did.

I have tried to obtain the medical files but the hospital needs her signature on the release--and that is highly unlikely to happen.

We are in need of two questions answered:

1. Sound mind description-legally.

2. His son-what are the procedures to contest this will?

It is not the fact of the money for us but for his son. And the matter that he was NOT clearly thinking. I was there 4 days after the supposed signing and he asked me to look into getting the will drawn up because he did NOT have one.