Does a Will written previously have precedence over a living Trust written at a later date?

UPDATED: Oct 1, 2022

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Does a Will written previously have precedence over a living Trust written at a later date?

My mother-in-law recently passed away. She had been going downhill since she had surgery 15b months ago. She was showing signs of dementia and it got worse as the days went on. Her previous doctor even has that in her medical records. Before she had surgery she filled out a will and my wife and I filed it with the county clerk. She had 4 children. In the Will she left all 4 children equal shares of real estate that she owned. In March of 2017, 2 weeks after she was admitted into a nursing home, she signed a living Trust transferring all of her real estate to my wife’s sister. We thought that once my mother-in-law passed, the property would be divided equally. It wasn’t My sister-in-law gave one of her brothers a parcel and she kept the rest. Can we do anything about what happened? My sister-in-law took advantage of an incapacitated elderly person.What are my wife’s and other brother-in-law’s legal rights?

Asked on November 20, 2017 under Estate Planning, Minnesota


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

I am so sorry for your loss and for the situation as it stands.  What you need to do is to challenge the transfer and the Trust based upon your Mother in Law's lack of "capacity"at the time the document was signed and your sister in law's "undue influence" upon her.  Seek legal help asap. Good luck.

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