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Ask Barrister Your Own Question
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33191
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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My friend who is elderly and on a very fixed income, had an

Customer Question

My friend who is elderly and on a very fixed income, had an aunt in Oregon who had no children and told her numerous times that she and 3 other cousins were to share in her estate upon her death. She passed 01/02/16. The estate is between 700k and $1m. There was a trust set up, however, one of the heirs now has a handwritten will not witnessed that leaves it all to him. But with a letter that says if this will won't do use the one at the Atty's office - which is attached to the trust. This new will leaves everything to him and his wife. She believes that this was done either with the belief by the deceased that he would split it without the trust equally or done under undue influence or duress. He kept telling her he would take care of her wishes. He now says that her wishes were that he get it all. My friend talked to her aunt weekly who told her of no such intent other than to share it all. My friend has very little resources and has only untill 4/27 to contest. Her cousin has asked to be named sole heir and representative by the court. He has kept my friend in the dark about all of this untill she got the paperwork from his attorney. How can we get her help to get what her aunt wanted her to have and is rightfully hers?
Submitted: 6 months ago.
Category: Estate Law
Expert:  Barrister replied 6 months ago.
Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question..You mention a trust and a will, which are two completely different ways to transfer assets....If there was a trust, who is trustee of it and is friend a beneficiary of that trust?.Who is the named executor of the handwritten will? .Are there two witnesses to the will who signed it and is it signed by the testator?.Has anyone seen the other will at the attorney's office?,If so, is it signed by two witnesses and the testator?.thanksBarrister
Customer: replied 6 months ago.
Friend is bendiciary as well As 3 other cousins. Of which one is the trustee. The executor of the handwritten will is also the beneficiary. The hand written will of which there are 2 - one is Wittnessed by the notary person and notarized and the other is not Wittnessed and is notarized. She has a copy of the will attached to the trust. It os Wittnessed by
2 people and notarized. Her cousins attorney has asked the court to use ORS 112.238 and 112.135 to enforce the handwritten wills.
Customer: replied 6 months ago.
Her cousin is trying to railroad her. If it would b easier to talk to her directly, her name is***** her number is(###) ###-#### Perhaps a call would be best.
Expert:  Barrister replied 6 months ago.
Ok, only a will that is witnesses by two people and signed by the testator is a valid will. If it isn't witnesses by two people, it is invalid..As for the trust, it would control any assets in it and distribute to the beneficiaries according to the terms of the trust.. But as for the will, it isn't what aunt told everyone for years, it is what she actually did. And if she signed a will along with two witnesses that gives the entire estate to one person, then that would be presumed valid. The witnesses would testify in any will contest that she was competent and under no duress and this is what she wanted. So the person challenging the will would have to prove that she was legally incompetent or forced to sign, which is very difficult because presumably they weren't there..Further, will contests are very expensive and an attorney is going to demand thousands up front before they even took the case with no guarantees..So if there is a validly executed will, then it is likely going to control the disposition of any assets that were in aunts name personally when she passed. But the trust controls any assets that were transferred into the trust....thanksBarrister