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socrateaser
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 33501
Experience:  Retired (mostly)
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Is it possible and what would be involved to get an injunction

Resolved Question:

Is it possible and what would be involved to get an injunction to prevent the sale of N's (my father-in-law), house?

K (my brother-in-law), and the Executor, today informed his J sister (my wife), that he intends to sell N's house next week. N has 3 adult children ages 57 -52 J, D, K in birth order.

I believe that K had undue influence over N especially at two times when he was most vulnerable. The division of the N's estate changed from an original 1/3, 1/3, 1/3, to recently where K received 87%, J 10% and D 3%.

The latest will was voided in November 2012 and assets individually allocated.
Assets, including Certificates of Deposit , that had designated names had the names of J & D crossed out (but not initialed or dated) and only K and his children (who were named on several but not all CD's) were left untouched.

A bank account that was originally 1/3, 1/3, 1/3 became 50,30,20 in July 2011 immediately after N was found guilty of a crime and K accompanied him to the trial. K stated "dad was not in his right mind after the trial." In Sept. of 2011 the % changed to 70,20,10.

In Nov 2012 N had a car accident, a heart attack and deteriorated quickly after that dying at home in Feb 2013 after months of bedridden round the clock care. In November 2012 his second will was voided by him and initialed and witnessed. The CD's in which names had been crossed out had %'s hand written on them but not dated or witnessed.

Can an injunction be issued and is there sufficient basis for finding "Undue Influence?" and how can this be done? I am in California, J my wife and D are both in Chicago to discuss the situation with K who is intransigent.
Submitted: 1 year ago.
Category: Estate Law
Expert:  socrateaser replied 1 year ago.
Hello,

Sorry for the delay, but I must be the only lawyer awake at the moment with estate litigation experience.

To answer your question, proving undue influence generally requires clear and convincing evidence -- which is overwhelming proof against the executor. Additionally, if the will has already been admitted to probate, then it's too late to challenge it, if the evidence you seek to produce in court was known before the will was admitted to probate.

BotXXXXX XXXXXne, I don't see how you could challenge the will at this point in the proceedings.

Your better claim would be to claim that the executor is mismanaging the estate. I don't know that this is true from your stated allegations, but since the undue influence claim is probably a nonstarter, the mismanagement claim would be your only option.

Failing that, your option would be to offer to purchase the property from the estate at fair market value. That would save the estate commissions which would be due were the property sold in the open market via a real estate agent.

I realize that this is not what you want to read, but unless there are facts about which I'm unaware, I believe that you will not be able to prevail on an undue influence claim, and I don't want you "spinning your wheels."

If you would like to run your case by an estate litigation attorney in Illinois, then for a competent referral, see this link.

Please let me know if I can clarify anything or assist you further.
Customer: replied 1 year ago.
Thanks for the apology for the long wait. My sense is there was some glitch in the system as they showed 9 estate attorney's on line when I first sent the inquiry at about 10 PM Pacific. Also three other attorneys started to respond but I never heard from them.

Now onto my issue.
Here's what I wrote above

"The latest will was voided in November 2012 and assets individually allocated.
Assets, including Certificates of Deposit , that had designated names had the names of J & D crossed out (but not initialed or dated) and only K and his children (who were named on several but not all CD's) were left untouched. "

So there is no will.

It is the individual allocations and formula that are suspect as the changes are co-incident to N's two periods of intense vulnerability: immediately following a guilty verdict and fine and following a car accident, heart attack and decline to his death.

K had unsupervised access to him, knew he "loaded" - (his term), K is also highly motivated as he is in debt, underwater on his house etc, intensely dislikes his other brother and his mother and believes (wrongly) that J, his sister, is well of

Would this constitute undue influence?
If not, what would be necessary to show it?

Thanks.

Ely
Expert:  socrateaser replied 1 year ago.
There may be undue influence, coercion, duress or pure fraud concerning the deletions indicated on the beneficiary designations for the CD, and concerning the voiding of a previous will. You could challenge the executor as personal representative of the estate, for committing a fraud with respect to the CDs, or exerting undue influence concerning the voided will -- and ask the court to remove the executor for "good cause." 755 ILCS 5/23-2(a)(10) -- assuming that there is an estate administration filed. You could also sue the executor for the fraud, simultaneously to your challenge.

All of the above would give you grounds to seek a preliminary injunction to prevent the sale of the home. But, you would have to prove that there is a reasonable likelihood that you would prevail on the merits of your claims at trial -- or no injunction can issue.

Note: If there is no estate administration filed, then I don't know how the executor can sell the home -- unless he was a joint tenant on the deed to the property as of the date of death. Otherwise, he would have to wait until he had letters of administration before he could sell the property.

Anyway, the botXXXXX XXXXXne is that this is a big deal. You need an estate litigation attorney in Illinois, and if the lawyer is unwilling to take the case on contingency, then you could be looking at an advance of $20,000 to start a case against the executor.

The case is not a "slam dunk" by any means. The facts show lots of circumstantial evidence, but no real smoking gun.

Please let me know if I can be of further assistance.
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 33501
Experience: Retired (mostly)
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