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Writing Parents’ Wills

I don’t do wills but I know people who do. I have told this to my mom several times but she keeps asking me to modify my parents’ will. I told her I have a conflict of interest and that after they die, I want to continue talking to my 10 siblings and not have to hang out with them in court. I like snowboarding with my brothers and jogging to the coffee shop with my sisters, not being deposed by their attorneys. Since she keeps asking me to do it and I keep giving her my friend Brent’s number and she keeps failing to call him or any other attorney who does wills, this story is for her and for everyone else who owns anything and is going to die someday.

My friend recently lost her brother. To compound the grief, she had to battle his girlfriend for the out-of-state home she had purchased for her brother several years earlier.

I will call my friend Denise, her brother, Alex, and the girlfriend, Brenda. Unfortunately, stories like this are common, but they are usually about siblings and in-laws fighting over property of the deceased, not girlfriends and their greedy sons.

About 10 years ago, Denise earned a lot of money with several projects she had been working on for a decade. She and Alex grew up without much and she wanted to share her success with her family, so she bought him a house. By then, Brenda had been with Alex for a few years and Denise liked her. When Denise purchased the home, she and a lawyer created documents that would allow Brenda to live in the home for life if Alex passed. Denise wanted to do this because she liked Brenda, appreciated how she treated Alex and her brother wanted it that way, too. The documents indicated that when Brenda passed, the home would go back to Denise and her heirs.

Five years later, Alex’s health suddenly declined due to stomach cancer and he was dead within six weeks. Unbeknownst to Denise, about three weeks prior to his death, Brenda brought a new will to the hospital for Alex to sign. The new will left the home to Brenda and her son. By the time Denise could take any legal action, the son had stripped the home of all its major appliances and sold them. Brenda moved out into a smaller rental and they were preparing to sell the home.

The court battle focused on the legal principle of “undue influence,” which is a term used in the law of wills meaning “a judicially created defense to transactions that have been imposed upon weak and vulnerable persons that allows the transactions to be set aside.” In this scenario, Denise and her attorney had to demonstrate four elements to get the house back:

1. That Alex was susceptible to overreaching influence due to some diminished mental capacity;

2. That Brenda had an opportunity to exert the influence, such as a relationship of trust and confidence;

3. That Brenda was inclined to exercise undue influence over Alex; and

4. That the transaction was suspicious or unnatural in that the changes to the will benefitted Brenda just prior to his death.

 

Hospital records indicated he was highly medicated to cope with his stomach cancer. He was on several different drugs including morphine on the day he signed the new will. He was vulnerable, dying and reliant on Brenda to handle his affairs. Denise was able to show the court all the above elements and the judge ordered that the first will applied and that Brenda’s son pay her back for all the sold appliances and that Brenda pay most of her legal fees.

This was a hideous situation to deal with right after Alex died, especially when Denise generously wanted Brenda to live in the home for life. So Mom, please call Brent or someone else. And Brent, if my mom does call you, I do not want to know anything about the contents of the will. FBN

 

 

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