Why it is Important for an Attorney to Advise You Regarding Wills?

The following is an example of an account that shows the importance of getting the services of a qualified attorney to supervise and guide you in properly executing a valid will.

Background

James Clark died in March 2000 at the age of ninety. Mary, his wife of sixty-five years had died in 1995. James lived in a condominium in his hometown during the time of Mary’s death. Soon, he moved to his son’s house in a neighboring town to live with his son James Jr. and his daughter-in-law, Margaret, as requested by his son. While James was living with James Jr. and Margaret, James Jr. suddenly died. For some irrational reason, Margaret blames James for the death of her husband.

The Will 

James executed a will in November 1996, upon the insistence of Margaret, leaving all of his assets to her. A relative of Margaret prepared this will.

Margaret continuously harassed James and saying things like “you should have died instead of my husband.” She also demanded James to give to her the things that were given to him by James Jr. Since James could not take any more of Margaret’s harassment, he decided to move back to his hometown through the help of his church.

Father Dean was the pastor of the church. He attended to a lot of James’ needs, including taking him to doctor’s appointments and getting James’ prescriptions. Father Dean also visited James regularly. Father Dead did all these for James because he knows that James would not hear the end of it if it was Margaret who took him to his appointments.

The Will, Revisited 

In October 1997, James decided that he needed an estate plan and asked Father Dean to assist him in looking for a lawyer. Since Father Dean did not know any qualified one, he asked Steve Cole who is a financial planner to meet with James. During this time, James was already living in an assisted-care facility. Mr. Cole determined that James wished to revoke his original will and give what he has to the church, saying that he would rather die intestate (without a will) than give anything to Margaret. If James died intestate, then none would go to Margaret, but instead James’ assets would pass on to his distant relatives.

Upon the suggestion of Mr. Cole, James tore up the will in front of Mr. Cole, with the intention to invalidate the will.

The New Will 

Mr. Cole had an attorney draft a new will for James which contains James wishes. He named the church as the beneficiary rather than Margaret. Mr. Cole brought the new will to James at the hospital where James was, because he was taken there by the assisted care facility. James signed the will the the presence of Mr. Cole, and Mr. Cole signed it as well as the notary public. They called Father Dean to the hospital room where James told him that he had signed the will and that Father Dean should keep the original copy in his church file.

Thereafter, Mr. Cole took the original will to the church benefit dinner while James remained at the hospital. Two church members “vouched” for James’ signature and Mr. Cole requested that they sign as witnesses to the will. Mr. Cole gave the original to Father Dean who did not know the exact contents of the will. When church member saw James at the church sometime later, they thanked him for signing the will.

The Dispute & Outcome

Margaret contested the new will by submitting a copy of the first will that James made. In the state where the will was executed, it is required that the will be signed by the testator, James, in the presence of two witnesses, who will then sign the will in the presence of the testator. Almost all states have this requirement. Since the second will was not signed by the witnesses in James’ presence or later acknowledged by him to them, it seems that the new will would be declared invalid.

It also appears that the church will not have a standing to raise the issue regarding the revocation of the previous will. The reason for this is that the laws of the state where the will was executed only recognizes the party who stands to benefit from the revocation as the one who could raise the issue of the revocation, since the second will is invalid because of improper execution.

Only James’ relatives may assert the revocation, should they are made aware of the case.

This is an example of how important it is to follow all the formalities related to the proper execution of a will. Any experienced and competent estate planning lawyer would have made sure that the witnesses and the testator were all in the same room at the same time to witness each other sign the document. 

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