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Thomas McJD
Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 6516
Experience:  Wills, Trusts, Probate & other Estate Matters
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My developmentally disabled brother recently died and before

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My developmentally disabled brother recently died and before he died he changed his will to leave everything to my sister and nothing to me. Can I challenge the will?

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

Has he been determined mentally incapacitated and had a guardian/conservator appointed over him?

TMcJD :

Sorry, I meant "had he"

Customer:

No. He lived with my mother and she took care of him until she died and then my sister took over.

TMcJD :

Do you think he was capable of understanding what a will was or was he simply of some impaired capacity where he understood what the will did but he was susceptible to your sister's undue influence?

Customer:

He was terrified of my sister, who was a bully. My mother had prepared a will for him leaving everything 50-50 to my sister and me. Then when my mother died, after my sister had stolen all of her money using a power of attorney, my sister had my brother's will changed to leave everything to her. My brother was high functioning but everyone knew he was "retarded".

TMcJD :

Okay, let me prepare an answer for you. I'll be right back with you. Thanks for you patience.

TMcJD :

You can contest the will, but you do have to prove either 1) that he lacked testamentary capacity (the ability to comprehend what he was doing with the will) or 2) that he was susceptible of undue influence and that your sister did unduly influence him to make a new will that he would not have otherwise made.

TMcJD :

Doing this is complicated.

TMcJD :

To show lack of testamentary incapacity, it's not enough to simply show that someone was somewhat deficient in mental capacities.

TMcJD :

The thresh hold of the state of mind to make a will is very low.

TMcJD :

You only have to understand that a will leaves your property to certain persons. And you only have to comprehend that at the moment you make a will.

TMcJD :

If he had not been determined incompetent or incapacitated by a court of law, then he is presumed to have requisite capacity to make a will.

TMcJD :

You would need medical evidence and testimony to prove to the court that despite the presumption of incapacity he could not have understood what he was doing at the moment he did it. This would be very, very difficult, so showing undue influence is probably the way to go.

TMcJD :

With undue influence, you can establish a presumption of undue influence by showing that your sister and brother were related and in a position of trust (he trusted her with his care and relied on her to do what was best for him). Based on what you've stated, it would appear there was such a "fiduciary relationship."

TMcJD :

With that established, you could then show that everything was left to her, to your exclusion, and that you were previously included in his prior will. That essentially establishes that the change was the result of undue influence.

TMcJD :

She would then have the burden of overcoming that presumption by a showing that he received independent legal counsel, which it sounds like was not the case.

TMcJD :

Thus, you probably have a very good case.

TMcJD :

However, these cases are still quite complicated and you would best be served by retaining local counsel to assist you in bringing a will contest to defeat the current will that excludes you.

Customer:

He had named me beneficiary of an IRA he opened many years ago and I got that money because it was outside the will.

Customer:

Should I just find a local attorney?

TMcJD :

Yes, having a local attorney assist you will be essential in properly bringing a will contest.

Customer:

Does this site offer referrals?

TMcJD :

I can't make a specific recommendation, but I use www.martindale.com all the time when I need to locate attorneys for assistance on matters outside my state of practice.

TMcJD :

You can also contact your state's bar association for a referral service.

Customer:

Thanks!

TMcJD :

You're welcome. Glad I could help.

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