Posted on 10/08/2020 2:11:51 PM PDT by woofer2425
"Asking For A Friend"....Asking for opinion....preferably from an attorney, but all are welcome to comment. An older gentleman passed away recently from complications of battling cancer. The question has to do with his will. Originally his will was written to leave his estate, which included several pieces of unimproved land an IRA and Annuity to his niece and sister. He was married only once for a very short period, just a few months, then divorced. Never married again. He also befriended a woman with young children and felt some sympathy for here and helped her monetarily buying her a house and paying the mortgage. Since learning of his worsening condition and ultimate death due to cancer, he began to rewrite his will leaving most of the assets to the two women and other "strangers" and very little to the original beneficiaries. His family felt that he was making some poor choices for several reasons. The day he was to sign the new will, he died...was not able to sign. The attorney, who has been working on both old will in the past and new will now, suggested that we follow the wishes of the older gentleman because that is what he wanted and it would have happened if he didn't die before signing. But, to fulfill those wishes, the executor of the will would have to "gift" the various monies and properties to the intended recipients because the "new" will was never signed, recorded or in force. He told the women of what to expect in the will, the others are unaware of the gift he was to bestow upon them. What would you do? Would you follow his wishes and voluntarily gift the monies and properties, or would you follow the old will that is legally in force, or somewhere in between?
“And there’s no chance he’ll be sued if he makes the choice to ignore the terms of the signed and witnessed will where he was named as executor?”
Not if he follows the instructions of the will accepted by the probate court.
“And there’s no chance he’ll be sued if he makes the choice to ignore the terms of the signed and witnessed will where he was named as executor?”
Not if he follows the instructions of the will accepted by the probate court.
In most states they can accept a draft will. AFAIK of only one state (Michigan) allowed an unsigned will to take precedent over a signed will (on appeal) but it required clear and convincing evidence of the deceased intent. Which I doubt was just a “he told me.”
Accepting a draft will is not the same thing as honoring an unsigned will when a legal will has been signed and witnessed.
“Any lawyer that would tell and executor to violate his fiduciary duty should be disbarred.”
He didn’t tell him anything of the sort, at least from the limited information posted.
See my #100
Even in Louisiana the bar is mighty high for a Nuncupative will (Louisiana Civil Code Sec 1578:
When a testator knows how to sign his name and to read, and is physically able to read but unable to sign his name because of a physical infirmity, the procedure for execution of a notarial testament is as follows:
(1) In the presence of the notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament, that he is able to see and read but unable to sign because of a physical infirmity, and shall affix his mark where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark, or to sign his name in his place. The other person may be one of the witnesses or the notary.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this is his testament, and that he is able to see and read and knows how to sign his name but is unable to do so because of a physical infirmity; and in our presence he has affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate page, and in the presence of the testator and each other, we have subscribed our names this _____day of ____, _____.”
Assuming both wills have the same executor and both sets of beneficiaries agree, that is possible.
If they don’t agree, SHTF. If the wills have different executors, SHTF.
Last minute wills of the old and infirm are always suspect in my book.
“Maybe he never would have signed that new will. Maybe he had second thoughts the night before. Who can say? So as others have noted, I’d go with signed will.”
Who can say? Yet you give advice without knowing pertinent facts!
GEEZ!
“Go with the signed will.”
And ignore the dying old man his last wishes?
“Last minute wills of the old and infirm are always suspect in my book.”
But not always invalid.
I’m a Financial Advisor, 28 yrs.
You need to contest the will.
But fact is, the IRA already had beneficiaries listed on them, as a contract. Same with the annuity.
Any bank or brokerage accounts may have had TOD/POD on them, a contractual beneficiary that supersedes a will and only requires a death cert for processing, not probate. Likewise, the annuity and ira are outside of probate.
I have once seen a successful fight in court on a TOD/POD listing. Stands for Transfer on death, Paid on death, synonymous terms.
> Yet you give advice without knowing pertinent facts! <
I’m not quite sure why you want to start a kerfuffle. But the original poster asked for advice/opinions. So I obliged. And please note my liberal use of the word “maybe”.
Have a nice evening.
Do you disagree with the proposition of law I stated?
I’ll offer another proposition: the executor should get a formal legal opinion from a competent estate attorney in the decdedent’s jurisdiction, backed up by a hefty malpractice policy. And should get a supplemental opinion from attorneys in other states where the decedent had significant assets.
“Even in Louisiana the bar is mighty high for a Nuncupative will”
State laws are very strict but courts have ruled wills valid even without meeting the statutes.
Not in Louisiana if it violates the Code Napoleon as adopted and amended in that state.
“I’ll offer another proposition: the executor should get a formal legal opinion from a competent estate attorney in the decdedent’s jurisdiction, backed up by a hefty malpractice policy. And should get a supplemental opinion from attorneys in other states where the decedent had significant assets.”
Assuming I was executer for both wills I would try to determine if the unsigned will was made with sound mind and reflected the desires of the decedent.
I would take both to the lawyer with my recommendation.
I would expect that will to be submitted to the probate court along with supporting information.
The new Will was not signed. It can’t be entered
The person or persons named as Executor(s) of the signed Will are legally and morally obligated to distribute the assets as specified therein. Unless the deceased’s attorney referenced in the story is the Executor, his job is to provide a copy of the last Will that the deceased DID sign.
You keep bringing up points which haven't been determined as fact. First you propose that the executor hid the existence of other unsigned draft versions of wills, and now you have the probate court already have made a ruling on what will has priority.
My advice to the executor, based solely on common sense, with no experience in the legal profession, would be to follow the written will, as presented to the probate court as a legal, signed, and witnessed will, and leave it up to the beneficiaries of the unsigned will to contest it in court if they choose. I'd think that's how the probate court would find itself in the position of MAKING a decision on whether a new unsigned will's terms would be followed instead. Let both sides present their arguments to the court on whether the deceased's mental capacities had diminished since he signed the original will to the point where he was no longer "of sound mind", or whether he was coerced into making a new will.
Once the will is contested, the executor can sit back and wait for the court to make a decision, or for the two parties of beneficiaries to negotiate an agreement that the court can rubberstamp.
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