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Thomas McJD
Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 3170
Experience:  Wills, Trusts, Probate & other Estate Matters
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How can I contest my mothers will as she suffered from Alzheimers

Customer Question

How can I contest my mothers will as she suffered from Alzheimers disease when my brothers took her to have me removed?
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.
Hi and welcome to JA. I am Ray and will be the expert helping you today.

Can you tell me what state is involved?
Customer: replied 1 year ago.

WV, I took care of my mom for years but when she was late stage got mad at me and 2 brothers jumped in to have me taken off the will,

Expert:  RayAnswers replied 1 year ago.
Again what state is she in so I may get you the law, thanks..
Customer: replied 1 year ago.

WV West Virginia

Expert:  RayAnswers replied 1 year ago.
Thanks give me a minute or two to get you some information.
Expert:  RayAnswers replied 1 year ago.
Here is the law..HAPTER 41. WILLS.ARTICLE 5. PRODUCTION, PROBATE AND RECORD OF WILLS.§41-5-1. Custodian of will to deliver same to clerk of county court or executor; liability for neglect.A person having custody of a will shall, within thirty days after the death of the testator is known to him, deliver such will to the clerk of the county court having jurisdiction of the probate thereof, or to the executor named in the will, who shall offer it for probate, or deliver it to the clerk, within a reasonable time. Any person who shall, without reasonable cause, neglect so to deliver a will shall be guilty of a misdemeanor, and, on conviction, be punished by a fine not exceeding two hundred dollars; and shall in addition be liable to any person interested in such will for all damages caused by such neglect.§41-5-2. Clerk to notify executor and beneficiaries, and to keep will safe in his office.Upon delivery of a will unto him as provided in the next preceding section, the clerk shall notify by mail or otherwise the executor and the beneficiaries named in the will, of such delivery, and shall keep the same safe in his office until proceedings may be had for the probate thereof, or until it is demanded by an executor or other person authorized to demand it for the purpose of having it proved according to law. §41-5-3. Compelling production of will and offer of probate.A county court having jurisdiction to probate a will, or the clerk thereof in the vacation of the court, upon being informed that any person has in his custody the will of a decedent, shall summon him, and by proper process compel him to produce the same. Upon the production of the will it shall remain on file in the clerk's office until proceedings are taken for the probate thereof. If any party desires to contest such will he may by application to the court or the clerk thereof in vacation have a rule against the executors and all the beneficiaries named in the will, returnable to the court, to be served in the manner prescribed in this article for service of process upon a petition to probate a will in solemn form, to offer such will for probate. If none of the executors or beneficiaries offers such will for probate within ten days after the return day of the rule, the court of its own motion shall offer the same for probate, so that the parties adversely affected by the will may contest the same. §41-5-4. Place of probate.The county court shall have jurisdiction of the probate of wills according to the following rules:(a) In the county wherein the testator, at the time of his death, had a mansion house or known place of residence; or(b) If he had no such house or place of residence, then in the county wherein any real estate devised thereby is situated; or(c) If there be no real estate devised thereby, and the testator had no such house or place of residence, then in the county wherein he died, or in any county wherein he had any property at the time of his death; or(d) If he died out of this state, his will or an authenticated copy thereof, may be admitted to probate in any county in this state, wherein there is property devised or bequeathed thereby. §41-5-5. Procedure for probate in solemn form.The county court, sitting in a regular or special session, shall hear and determine all proceedings to admit a will to probate in solemn form. Upon or at any time after the production of a will, any person may offer the will for probate in solemn form by filing in the county court having jurisdiction a petition duly verified by affidavit, stating when and where the testator died, his last place of residence, the nature of his estate, the relationship to decedent and place of residence of each of his heirs at law and distributees, surviving wife or husband, and each of the beneficiaries of the will. Process shall issue against and be served upon all persons interested in the probate of the will to appear at a day named, and show cause why the will should not be admitted to probate. A guardian ad litem for any person under disability shall be appointed, upon whom such process may be served, and such process shall be served upon parties resident in the state, and proceedings by order of publication or service in person without the state shall be had against all nonresidents and against all persons to the petitioner unknown, in the same manner as process is served and such proceeding had in suits in equity. At any time after the petition is filed and before final order is made admitting or refusing to admit the will to probate any person desiring to contest the will may appear and file a notice of contest in the proceeding, stating concisely the grounds of such contest. Thereupon, process shall issue on such notice and be served upon any person whose interest will be adversely affected by a refusal to admit the will to probate to appear and defend his interest. Any person sui juris may waive service of process upon the petition or notice, and the guardian ad litem of any person under disability may waive service of any such process, upon such person and upon himself. Process upon the petition or notice shall be served at least ten days before the return day thereof. Any petition or notice of contest hereunder may be filed in the office of, process be issued, served and returned, and a guardian ad litem appointed by, the clerk of the court in the vacation of the court, and the proceeding may be matured and set down for hearing. §41-5-6. Hearing and decision.If no contest be made, the court may, on the return day of the summons on the petition, and, if contest be made, on the return day of the process upon notice of contest, or at any day thereafter fixed by the court, proceed to hear and determine the question of probate, and enter such order or judgment thereon as the law and the evidence in the case requires.
Expert:  RayAnswers replied 1 year ago.
You will need a lawyer here to file a will contest.She lacked capacity and there was undue influence for her to change the will.You would argue through your lawyer that it should not be admitted.You may then try to probate any prior will in your favor .
Expert:  RayAnswers replied 1 year ago.
Incapacity, fraud, undue influence and duress are the most common grounds here in Wet Virginia.You need to locate a probate lawyer as soon as you can so you can contest this when they file it for probate.You may well have the facts to successfully challenge the will.Probate lawyers with ratings so you can contest this matter. http://www.avvo.com/probate-lawyer/wv.html I appreciate your patience today and the chance to help.You have remedies here through the courts to contest the will as I set out above.

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