Dear Moneyist,
My father is a widower who never remarried. In 2015, he was tested by an expert physician and was found to have early-stage dementia. A few months after the dementia diagnosis, my three siblings retained a lawyer to draft a new will for our father without our father’s knowledge. I was at my father’s house when the lawyer and two of my siblings arrived unannounced, along with two witnesses from the lawyer’s firm.
Before that moment when the lawyer arrived with legal documents ready for signing, my father had never met with the lawyer. When Dad asked the lawyer why he needed to sign a will, he was told that his prior will — my siblings had a copy of it — was not properly witnessed. After struggling to read the new will, my father signed it.
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The lawyer left with the will and did not give Dad a copy. The lawyer never sent Dad a bill for legal services. My sister later told me that my three siblings each paid one-third of the legal bill as required by their written retainer agreement with the lawyer.
Since signing the new will in 2015, my father’s condition has deteriorated and he appears to be mentally incompetent. If the facts surrounding my father’s will were proven to a probate judge, would the will be invalidated?
After doing some research on my own, I believe there is a federal law known as the Older Americans Act, and similar laws in many states, that are supposed to protect senior citizens from those who interfere in the financial affairs of older people.
Troubled son
Dear Troubled,
You must have so many questions about that new will. I am curious to know what it says too. I could take a wild guess that your three siblings made out like bandits. They should have known better. The lawyer should have known better. The only person who should not have known better is your father because he was frail and vulnerable and, as you say, in the early stages of dementia.
The good news: There will be a clear paper trail with dates and documents of both the diagnosis of your father’s illness and the signing of the will. It’s hard to believe a reputable law firm would actually participate in this kind of flash mob signing of a will. It wouldn’t surprise me if the date on your father’s new will was incorrect. Lawyers have been disbarred for less egregious activities.
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A person must be of sound mind and understand what they are signing. That is, he should have at least had testamentary capacity, a legal term that refers to a person’s ability to make a valid will. He would need to know why he was signing it and how much property was at stake. Your siblings and their lawyer treated this situation like the Wild West of estate planning.
It’s difficult to prove that someone is not of sound mind. In this case, a man who was suffering from Alzheimer’s signed a will 14 years prior to the symptoms of the disease making themselves known. That’s a tough one to prove. In another letter I received, an elderly man left $1 million to strangers and dead people after changing his will days before he died. That was an easier case to prove.
Hire a lawyer. File a petition with the county court to see a copy of this will and nominate yourself as executor of your father’s estate. Talk to your father’s doctor. Gather the relevant documents, including the previous will. These actions by your three siblings are nothing if not brazen and they are counting on you to do nothing, and to feel both powerless and helpless.
In the name of your father, I urge you to prove them wrong.
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