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?
“Non Sequitur”
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Huh, the dead get a do-over? Like hanging chads? Run it by an atty who specializes in contract law, you’ll get much the same answer.
You a lawyer?
Yes, agree. I am a lawyer, but not an estate planning one.
Certainly not. Probate and wills are a specialized practice. Not every lawyer is well versed in them. You would not consult a malpractice attorney about a house closing. The fact the attorney of record gave the advice he did is proof he is not the one to handle the matter. For one thing an executor does not get to do just whatever they feel like unless such is specified in the will. There is such a thing as fiduciary duty and there is big trouble in store for a person charged with that who just ignores it.
Going by the unsigned will when a signed legal will is in existence(in some states even a halograph will is not considered a legal document)would likely result in a long and expensive legal battle. Maybe even very long and very expensive.
“You keep making this point but review of the literature suggests that the unsigned new will can be used by the people named therein as evidence in a suit not that the executor should follow such an unsigned paper in preference to a legally executed will.”
No. The literature states that the probate court may accept an unsigned will.
“Old signed will...period!”
To hell with the law and the old man’s last wishes. Congratulations!
‘Would your expert advice to the executor be that HE should be the one to make the decision on whether the signed or the unsigned will should have priority?”
We don’t know if the second will keeps the same executer!
The key word there is “may”. The first will is valid on its face, the second is going to require legal legerdemain that costs real money to get a judge to declare it valid.
Who is going to sue? Do the beneficiaries of the unsigned will have the $$$. Is the estate big enough to attract sharks?
It’s probably wise to gift the 2nd will beneficiaries to go away as recommended by the lawyer, but that’s up to the first set to decide.
“Huh, the dead get a do-over?”
No. The living get a do-over.
“Yes, agree. I am a lawyer, but not an estate planning one.”
Perhaps you should do some study on the subject?
My brother was the executor of an estate which went through a very similar situation. The legal guidance he got was to follow the last will filed at the county and close out the estate asap, then let the parties fight it out in court. This was about 5 years ago, and from what I hear, the kids are still fighting in court.
” The first will is valid on its face, the second is going to require legal legerdemain that costs real money to get a judge to declare it valid.”
Less money than if the women contest the signed will and sue the executer for hiding the unsigned will.
Again, that all takes real money, upfront, with no guarantee of winning.
Beneficiaries have every right to accept, gift, or pass altogether in any probate situation.
People always say it’s not about the money.
It always is.
Any lawyer that would tell and executor to violate his fiduciary duty should be disbarred.
And the folks that had influenced him to change the bequest (ultimately unsucessfully) should demand an autopsy.
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?
In very limited circumstances. A ruling in favor of an unsigned will in one state does not mean such rulings hold in all states. So when discussing the overall general laws on wills a signed and witnessed will is considered the legal document that the court will accept and observe.
And last week everyone was a medical expert. Cures for POTUS's COVID ranged from ionophores to poultices to leeches.
Obviously POTUS's doctors consulted this site; he sure got better quick!
Sure they can. But the ones named in the latter will are free to take the matter to court.
“Again, that all takes real money, upfront, with no guarantee of winning.”
This is not about winning or losing. It is about legally administering the estate as the old man desired.
If one truly believes the unsigned will was made with a sound mind and reflected his desires accurately, that will should be submitted along with supporting evidence to the probate court.
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