Has Father Changed His Will?

San Antonio Express-News August 8, 2006 Has Father Changed His Will? copyright 2006, Paul Premack
Dear Mr. Premack: My friend's father has dementia that has worsened recently, so he is now in a nursing home. Just prior to his admission, his other daughter went online and changed his Will to name her as executor and to give her 2/3 of his assets instead of the equal division his old Will had. She is also spending his savings on herself. My friend has been living with him and taking care of him until his admission. Is the new will legal? Can it be contested now while the father is alive, before the sister spends all his savings? S.E. There are a lot of unknowns in the scenario that you outline, the largest being exactly what the father wants in this situation. Clear communication may be the key that solves this puzzle. Though father has dementia, there are wide degrees of that malady. If he is well enough, he should be asked what he wants under these circumstances. Your comment that his other daughter “went online and changed his Will” does not work from a legal perspective. She may have used some kind of online service to produce the words on paper… but words on paper are not a Will until the document is signed by father, witnessed by two independent people, and dated. Father had to be involved. The real issue, then, is whether he knew what he was doing at the time (assuming he indeed signed the Will). Ask him. He will either be too ill to respond rationally, respond that he wants the changes, or respond that he does not want the changes. If he wants them, then your friend has no grounds to complain. If he says he did not want the changes, your friend should see he visits his lawyer – privately, so that she is not accused of influencing his choices – so he can revoke the objectionable Will and sign a new one. If he is too ill to reply, your friend will have to decide what legal action to take. She cannot contest the Will while he is still living, but after he passes away she may have grounds for a contest. Was he “unduly influenced” to make the new Will? Did he lack “testamentary capacity” when he made it? Is it a forgery? Does it have all the requisites of a Will (proper signature and witnesses)? She may or may not have concrete proof to answer any of those questions. Another unknown in your scenario: how is the other daughter accessing all of father’s money? Is she on his bank accounts as a signor, or does she have power of attorney? Again, asking father what he desires is the key; maybe he wants other daughter to be spending his money. His dementia may make it impossible to determine his intent. This is a situation in which it would be proper to make a report to Adult Protective Services. They can investigate, and determine whether her actions are illegal exploitation of her elderly father. She can be enjoined to stop further damage and might even be prosecuted for violation of her fiduciary duties. Your friend might also consider filing for Guardianship of father. The process is complex and slow, but if the court determines that he is incapacitated and that she will act in his best interest then becoming Guardian would stop her sister’s questionable activities.
Prior Week: Holographic Wills - and - Free Wills Clinic Next Week: Must Children Support Aging Parents?
Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney. You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.