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?
“Follow the legal, signed will. It’s a legal document, the unsigned one is not.
Better, no?”
No!
“””Oh, and I’m not a lawyer. But I did stay at a motel 6 last night.”””
I have watched My Cousin Vinny about twenty times. I know a thing or two about the law. Ask away.
Makes me wonder if the FRIEND spent a lot of time with him and helped him a lot when he needed it but the sister and niece did not!! I don’t think the family will turn it over regardless!!!
Go with the original signed will.
A lot of people claim “he was going to leave me his xxxx”
And fire the lawyer who wants to go with an unfinished will.
“Go with the original signed will.
A lot of people claim “he was going to leave me his xxxx”
And fire the lawyer who wants to go with an unfinished will.”
Apparently you are not knowledgeable in this area of law.
“First off I’d get a new attorney
The standing legal document is the original will”
Perhaps you are not aware of court cases to the contrary
“What kind of lawyer advises a family to ignore a signed legal will in favor of one that is not signed? “
One knowledgeable in the law?
” If the executor does anything but follow the letter of the signed and filed will, the executor is violating the law and the door is open for lawsuits galore, “
Law has determined that an unsigned may have priority.
“Since he never signed it, how does anyone prove that is what he wanted?”
He was working with a lawyer. There is legal precedent for going with the unsigned will.
[Not a lawyer and dont play one on TV]
I would say that the attorney needs to be put on the spot with a couple of simple questions:
1) According to state probate LAW, which will is current and correct? Usually a signed will is given priority
2) According to state probate LAW, what discretion does the executor of the will have with disregarding the provisions of the will? Usually none.
Usually the answer to those two question will clarify things quite a bit.
“I’D ask that lawyer if he wants to discuss it with the bar association and spend time on prison.”
BS!
” What they are perhaps casually advising the executor to do is really frickin’ dangerous, from the legal liability standpoint.”
Ignoring the unsigned will is also dangerous from the legal liability standpoint.
What he was saying that you could never be certain how a judge was gonna rule on a certain matter...or in a particular case.
That may,or may not,apply to other states...including yours.
“If there is a valid will and an invalid will, I don’t see where a court would go with the invalid one.”
Courts have ruled that an unsigned will may be valid. Even an oral will may be valid!
“The original will. The new will would have to be signed”
Courts have ruled unsigned wills valid even if state law requires a signature.
I thought it was a Holiday Inn?
There is literally, no choice. There is only one legally signed will. The executor has to follow it.
What the beneficiaries do with their inheritance is their choice.
They have no legal obligation to follow the second unsigned will. Neither do they morally. The living owe the dead nothing. Sucks for the beneficiaries of the 2nd will and the lawyer was lazy in not getting it signed in a timely fashion.
“Courts have ruled that an unsigned will may be valid. Even an oral will may be valid!”
—
You’d have to ask a lawyer experienced in the area - but I suspect where a will is legally invalid, it’s going to be mighty tough having it enforced over one that is kosher.
“What the beneficiaries do with their inheritance is their choice.”
—
Also I believe in will boilerplates there can be stipulations along the line of if any beneficiary legally opposes the will, that person’s loses his ‘cut’ and it’s given to the others.
“but I suspect where a will is legally invalid”
True. But the unsigned one may be valid.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.