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Richard
Richard, Attorney
Category: Business Law
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Experience:  32 years of experience practicing law and a businessman.
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My mother and step-father made a will years back and recently

Customer Question

My mother and step-father made a will years back and recently my mother came up to new hampshire to get some medical problem fixed while she was up here she had to fligh back to texas twice do to her husbands( my step-father) medical problems, he had to go in the hospital twice just to save his life. He died yesterday night at 10:00 pm at siant marys hospital in beaumont tx. my mother just found out that he and his oldes son change the will recently. David (my step-father ) has law suits going on right now do to his illnesses. My question is is there a time period that an idividual has to be pyhsicaly and mentaly healthy before he can change the will that he had previously made.
Submitted: 3 years ago.
Category: Business Law
Expert:  Richard replied 3 years ago.

Good morning. There is no specified time period. The standard that he must have to change his will would be that he had a "lucid interval" and witnesses that could attest to that. Lucid interval does not mean he has to be continually healthy either mentally or phsyically..only that for an sufficient interval knew what you were doing. A will can be contested, however, for a variety of reasons and the fact that the will gets changed close to death in a manner that would raise suspicion always casts doubt on the new will. In order to contest the will, you would need to prove one of the following grounds...

 

You Must Have Standing. One of the requirements for contesting a will is that you somehow have a connection to the will and feel harmed by its contents. You either have to be named in the will, but feel that you should have inherited differently, or weren't named in the will and should have been named in it or would have received money if the person had died without a will.

Valid Reasons for Contesting a Will. You also must have a valid reason to challenge a will, such as undue influence, fraud, mistake, or loss of mental capacity of the testator. Simply being upset with your inheritance amount isn't an actual reason to contest a will.

Testamentary Capacity and Formalities. Some will contests are based on allegations that the deceased person, testator, wasn't "of sound mind" or testamentary capacity to make the decisions in the will or made according to state laws. In general, wills must be signed and witnessed by at least two people and everyone must be over 18 years of age. These grounds depend on the laws in the state where the will was created, signed and filed for probate.

Fraud, Undue Influence and Mistake. A will, in full or in part, can be found to be void if it was made under undue influence (i.e. duress), fraud or mistake. This means that all of or part of the will won't be enforced if any of the above occurs. Anything that hampers the ability to make a will by the "testator" to their wishes shouldn't be accepted in a court of law. If a will is voided, the estate will be distributed under the state's intestate laws. If only part of the will is void then the share from the voided distribution is dumped into the residuary estate and dispersed according to the will. Undue influence could be present when a trusted person influences the testator to make a will that benefits him. The key is whose overall intent was put into the will: the creator or the beneficiary's. A full will or any part of it may be voided if it was created under fraudulent means. This could happen if the person making the will is presented with information that made them change their mind about whom to leave their property to. If Carol tells her grandfather that her brother, Jim, was a thief to get him to change his will when Jim really wasn't a thief could be fraud. A mistake can be found when it is proven that the testator did not intend to include certain provisions in a will or if the testator signed the wrong will. When the mistake involves a signature, a court may revise a will that was signed by mistake, such as when it is clear that a husband and wife intended to make reciprocal wills but signed the wrong original documents. On the other hand, if the testator made a will under a mistaken belief of fact (i.e. was mistaken in his or her belief regarding certain facts), that mistake generally would not invalidate the will.

Tortuous Interference with an Inheritance. Instead of contesting a will or claiming it's invalid for any reason, there's another way to interfere with an estate. You can file a lawsuit against the person who is receiving the property you think should be yours when the creator of the will is still alive. This tortuous interference requires you to prove that the defendant (person you're suing) interfered with the creation of the will for any reason. If you win your case, not only will you be able to inherit from the will, you'll recover attorney fees and any other costs you paid associated with the suit as additional punishment.

 

I hope this has given you the guidance you were seeking. I wish you the best of luck!

 

If you have a follow-up question, please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.

 

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If you need additional clarification on this question after clicking ACCEPT, please do not hesitate to click Reply and I will be happy to do what I can to help you further. Thanks for allowing me to be of service to you.

 

The information given here is not legal advice. As all states have different intricacies in their laws, the information given is general only. This communication does not establish an attorney-client relationship with you. I hope this answer has been helpful to you.

Customer: replied 3 years ago.

thank you for your answer. would you happen to know a lawyer that spesalizes in this matter. sorry for the speelin errors

 

Expert:  Richard replied 3 years ago.

You're welcome...glad I could give you some direction. We are not actually allowed to make specific referrals. But, if you contact the State Bar Association and ask for a referral of an probate and estates lawyer, they can make several recommendations and you can then talk to each of them to see with whom you are most comfortable. I'm sorry you are having to go through this...death is difficult enough to deal with without having to address additional problems such as yours. You take care!

 

I would appreciate it if you would please click the GREEN ACCEPT button so that I receive credit for my work; otherwise, though you have made a deposit, I do not receive credit.

 

 

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