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Sister not happy with will and plans to contest it

November 30, 2012
By SYLVIA HELDRETH - Real Estate Law , Cape Coral Daily Breeze

Question: My husband and his sister have been sharing the costs of their mother's nursing home for four years. Mother insists that she will be able to return home one day but we know this is not likely. After lengthy discussions between my husband, my mother-in-law and her attorney, my husband has agreed to be the executor of his mother's will.

Mother is leaving her house, her primary asset, to us because we have a large family and his sister is single. His sister knows the contents of the document and has let it be known that when their mother dies, she is going to contest the will because it is unfair to her. She say she knows all about will contests and she'll succeed. Will she?

Answer: A will contest challenges the admission of a will to probate through litigation. If the will is thrown out, the court may disallow only the part of the will that was challenged or throw out the decedent's entire will. When this occurs, the property is distributed as if the person died without a will, or the last previous will is used, depending on state law and the specific facts and circumstances.

Wills are sometimes challenged by those who believe that the person writing the will lacked the mental capacity to think clearly because of senility, mental illness or any other reason that they might be of unsound mind. Sometimes the challenge is based upon an allegation that the author was coerced, under undue influence or the victim of fraud. Challenges are sometimes made because forgery is suspected or because some legal requirement such as appropriate witnessing is doubtful. The lengthy conversations that took place between your husband and your mother-in-law's attorney suggests that it would be hard to make the usual challenges.

In our system, anyone can file suit for almost any reason but that does not mean that they are guaranteed success. Tests on the validity of a will are not contingent on the "fairness" or reasonableness of its provisions. A person cannot successfully challenge the validity of a will simply because she does not like its provisions, or did not, in her opinion, get what she wanted.

The executor has the responsibility for managing the estate through the probate process to assure that the wishes of the deceased are honored. Given the situation, your husband may want to reconsider his agreement to act as executor. In any case, consider consulting an attorney who is familiar with wills and the probate process.

Attorney Sylvia Heldreth is a certified specialist in real estate law. Her office is located at 1215 Miramar St., in Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.



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