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?
Or follow the old dodge of inserting a fly into the dead man’s mouth, clench his dead fingers around a pen, and trace the signature to the new will so that you can say he signed while there was still life in him.
I do know right and wrong and the law have a nodding acquaintance but are seldom close friends.
I know enough to know that the unsigned will does not have any legal validity. The deceased could have changed his mind at any point prior to signing the will, and might well have. So the original heirs owe nothing to the ones named in the new will. That said, it is often the case that paying a little something to a person who feels slighted in an inheritance situation will make sense, to avoid the expense and aggravation of litigation. Just make sure the releases are solid before paying anything. In this case, I wouldn’t pay much.
I also know enough to spot a smartass. I think I see one right now.
How dare you inject actual knowledge into a thread on the internet!
“I know enough to know that the unsigned will does not have any legal validity. “
Courts have ruled that unsigned wills may be valid regardless of state law.
New Jersey:
An analysis of this recent decision indicates that New Jersey Chancery Courts may probate unsigned Wills under certain limited circumstances. The traditional rule has always been that a Will must be signed and witnessed. However, and pursuant to existing New Jersey law, a document may qualify as a “writing intended as a will” whether or not witnessed, if the signature and material provisions are in the Testator’s handwriting. Furthermore, even providing the document is not signed, it may still qualify as a Will if the Testator’s intent is clearly established. As noted, the criterion for maintaining such an argument is “clear and convincing evidence” which is notably a high standard.
8. Let the fictional case of Jarndyce and Jarndyce as presented in Bleak House remind you that this kind of drawn out legal mess is nothing new.
No doubt St. Peter is busy scribbling down my offense right this moment.
Take careful note. The case does not involve two wills where one is a signed and witnessed document and the other is an unsigned will. Not to mention that the original heirs have doubts about its validity beyond the lack of a signature.
You are adding conditions that are not present here. Do you think that Texas courts give a hoot about a New Jersey case? Even if it was looked at as possibly instructive, the opposing party would have to prove that the deceased reviewed it and indicated that this specific document was his will, and then for some reason was unable to sign it. Perhaps he reviewed it from an email and approved it in an email and then said he would come in and sign it, but died. That might be evidence. But the signed and witnessed will would still most likely govern over one that was not signed and might well have not been signed. People often step back from the brink.
A better use for this kind of will would be if he had no will at all. But that’s not the situation.
Why are you so invested in the argument?
“Why are you so invested in the argument?”
I keep getting posts from people that want to disregard a dying persons last wishes.
“Take careful note. The case does not involve two wills where one is a signed and witnessed document and the other is an unsigned will. “
The court decision was not dependent on that factor.
I assure you it was. If a prior signed will was not mentioned in the ruling you can be certain this was a matter of whether to accept a single signed document over another unsigned. In the case (I assume this is the one)
1. The decedent had informed his attorney he could not locate an earlier will.
2. He had a new will drawn up but that was not signed.
3. He changed how he wanted his heir to receive their inheritance. No change was made regarding who would inherit.
4. There was correspondence from his attorney outlining what changes the decedent wanted made along with a draft will. No changes were requested by the decedent.
5. An appointment was made for the signing and witnessing of the will.
6. The attorney showed that the will submitted for probate was the same as the draft will sent to and approved by the decedent. The decedent’s approval of this draft will was affirmed by the nephew of the decedent.
All of the above was enough for the probate judge to determine it met the required criteria of “clear and convincing evidence.” But I’ll let this quote from the legal firm’s page where the case is discussed sum up,
“Matter of Anton is unique in that the court opined that it had uncontested ample evidence of the Decedent’s mindset in light of the supporting testimony and affidavit, all of which were consistent in nature. The absence of such evidence, however, would have likely resulted in the court applying the traditional rule requiring a signed writing.”
Not at all like the situation presented by the original poster.
Several people including myself have stated that the heirs named in the will are free to follow the decedent’s wishes once the will has been probated. They don’t have a legal obligation to do so but it is up to them to decide if they have a moral one.
errata: DISREGARD: If a prior signed will was not mentioned in the ruling you can be certain this was a matter of whether to accept a single signed document over another unsigned.
Should read: If a prior signed will was not mentioned in the ruling you can be certain this was NOT a matter of whether to accept a single signed document over another unsigned.
Your unhappy with the moral dilemma. I get it. There is a moral aspect to trying to uphold a man’s last wishes. But there is also a moral aspect to family feeling like some people swooped in at the last minute and took an inheritance from someone in their family, perhaps with some undue influence. That happens all the time with people at the end, especially if they think less clearly. We don’t know the circumstances, and it may be that the legal heirs are in the right, or that the new heirs were honest people caring for an old man’s whose own family did not do right by. That would definitely play into the moral issues. But it would not affect the legal ones, except to the extent a judge sympathizes with one of the sides. In those situations, judges will often try to find a way to shade the ruling to one side, IF they have leeway. There may be no leeway in this case.
“Your (sic) unhappy with the moral dilemma. I get it. “
You are obviously not clairvoyant.
“We don’t know the circumstances,”
Nor are we legal experts. That is why my first post was caution about taking advice from strangers on the internet.
I have made no recommendation one way or the other in this case. I have outlined how I might proceed but it was conditioned on evaluation of facts not in evidence.
I just find it totally asinine for anyone to think they can make absolute recommendations based on incomplete third-hand info AND without a good understanding of the legal concepts.
We? No. But I know enough as a lawyer who has passed the bar, which did have estate planning on it, and who has done wills and trusts for family, and who has assisted people occasionally with problems in this area, to know that a signed properly attested will governs over one that was prepared but not signed. You wanted to digress into moral issues, and THAT is what we don't know enough about to declare one way or the other. We don't know enough to decide who deserves that money, or whether the new people were taking advantage of an old man in his last days.
“. You wanted to digress into moral issues, and THAT is what we don’t know enough about to declare one way or the other.”
LOL! spoken like a lawyer! The law is not concerned with morality!
” to know that a signed properly attested will governs over one that was prepared but not signed”
Hypothetical:
If a person worked with you to draw up a new will and was killed in a car wreck on the way to your office for the final signing, what would you do with the unsigned will?
Is there a signed will the predates the unsigned one? The signed one would be considered the legal document. Now if the family/heirs had no problem with the changes I believe this is what would be done:
Not a lawyer but my understanding is that the attorney(assuming that there were no major changes in the beneficiaries and how the will was to be executed. For example both will set up a trust fund but one had the money disbursed when the heirs reached the age of 25 and the other at the age of 18 if used for schooling.) would
1. Provide documentation showing the deceased requested and approved the changes. It might be in the form of the appointment made to sign the will and any correspondence related to it.
2. Provide supporting affidavits from those who were told directly by the decedent that he or she was satisfied with the new will as drawn up and would be making it official.
But it is my understanding that both the existing will and the new draft will would have to be submitted to probate where a probate judge would determine if the new unsigned will would be valid.
The above is pretty much what happened in the NJ case you cited. Except the original will was lost. So it was as if there was a whole new will not a changed one.
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