By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho
Mildred signed a Last Will and Testament ten years ago in her lawyer’s office. She divided everything equally between her two sons, Sam and Mark. The Will also stated if a son died before she did, his share was to go to his wife and children to divide equally. She appointed Mark to serve as her Personal Representative to wind up her affairs after she died, and Sam was nominated as a backup.
Mark died six months ago. Mildred died this spring.
After her death Sam contacted the attorney who prepared the original Will and wanted to know what steps to take to administer Mildred’s Estate. Sam told the attorney that Mark had died. When the attorney explained the steps required to probate Mildred’s Estate, including giving notice to Mark’s wife and children, Sam stated that was not necessary because his mother made changes to her Will after Mark’s death and she removed any reference to Mark’s wife and children, so everything went to Sam.
The attorney asked Sam who prepared the document that reflected these changes. Sam said he did. He repeatedly stated he was following his mother’s wishes and had done exactly what she wanted. The attorney mentioned that it could be perceived that Sam had unduly influenced his mother and the change may be invalid. Sam hung up the phone.
Why should the attorney be concerned?
- Sam’s explanation is that he was following what his mother wanted. This is automatically a suspect declaration when the estate plan is changed to eliminate one side of the family.
- Mildred did not visit with an attorney, without Sam in the room, to find out if she really wanted to disinherit Mark’s family.
- There is no record to show that Mildred was competent and understood that the document she was signing left out Mark’s family.
What is the result? Who knows? The attorney is prohibited from contacting Mark’s family as provided under the legal ethics rules. There is a high probability that Sam will end up with all the property. Is that really what Mildred wanted?
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