How Can I Get My Share of My Father's Estate From His New Wife?
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Answer:
The answer depends on all the facts and documents involved, such as how the assets are titled. For example, if the assets are held in trust, it may be necessary to file a motion against the trustee. If the assets are held as joint tenants with right of survivorship, they should have automatically transferred to the survivor on the passing of the other joint owner. It is likely too late to contest the will based on statute of limitations or waiver issues. Often, potential heirs sign a release when the estate is probated. If the mother instructed someone to prepare another will but never carried through with signing that will, it probably will be a moot issue. It may be possible to bring an action for breach of fiduciary duty if he was acting as a guardian, agent under power of attorney, or trustee for your mother. To have the stepfather declared incompetent and a guardianship created is a complex process and will depend on a medical evaluation of his mental state.
A will must be prepared and properly executed (signed and witnessed by a certain number of competent witnesses) while a person still has legal or testamentary capacity. A person must execute a will while he or she has full control over his or her mental functions. If a person waits until he or she suffers an accident or an illness, it could be too late. Testamentary capacity means the maker understands the nature of making a will, has a general idea of what he/she possesses, and knows who are the members of the immediate family or other "natural objects of his/her bounty". Testamentary capacity requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. Also, it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.
A will is most likely to be challenged by someone claiming that the will was not properly written, signed or witnessed, or did not meet the state's formal requirements; the decedent lacked mental capacity at the time the will was executed; the decedent was a victim of fraud, force, or undue influence; or the will is a forgery. If a will contest is successful, the entire document may be thrown out. Alternatively, the probate court may reject only the part of the will that was challenged. If the entire will is disallowed, the court will distribute the decedent's property as if the person died without a will. If possible, the court may use a previous will, but such action will depend on state law and the facts and circumstances of the case. Will contests are not uncommon, but few people actually win one. They can be very expensive and create lengthy delays in the distribution of an estate's assets. We are prohibited from giving legal advice, as this service provides information of a general legal nature. We suggest you consult with a local attorney who can review all the documents and facts involved.
