I How do I contest a Will that was signed 3 days before the person died of terminal cancer?
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I How do I contest a Will that was signed 3 days before the person died of terminal cancer?
My son’s grandfather died of terminal cancer last month and his grandmother has dementia. They had 2 children, a daughter who is incapacitated in a state mental facility and a son who is incapacitated due to chronic alcohol abuse. I have POA over our son. The Will was changed 3 days before the grandfather died. The new Will excludes the son, daughter and all of the decedents. The executor of the Will is a person who says that he is a friend that has known them for 20 years. I have never heard of this friend and I have been actively involved with the family for 30 years. There is another person who has filed for guardianship over the grandmother who is incapacitated due to dementia. These 2 people have alienated all of the family from the grandmother and the daughter. There is no communication at all. We did not find out that the grandfather died until we called to talk to him and the person that answered the phone told us. I am a single mom with no child support and do not have the funds to fight these people. I believe that there is undue influence here. I wanted to get guardianship over the grandmother but the lawyer I talked to said it would cost a minimum of $20,000. I do not have that kind of money. I am at my wits end because I feel that these people are going to get away with this. I need to find an attorney that will take this case on a contingency. The grandparents were very wealthy.
Asked on November 29, 2016 under Estate Planning, Texas
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 7 years ago | Contributor
You may not be able to not find an attorney to take this on contingency, because challenges to wills are not likely to settle without going all the way to and through trial--that is, this could be a very great deal of time and work for an attorney for which they might not be paid anything, if they take it on contingency and lose. Also, challenges to wills can e very difficult, especially ones based on "undue influence," because there often is no witness to the relationship other than the person you are accusing of wrongful acts; that can make a case like this difficult to win. That's not to say to not keep trying to find such a lawyer, but economically, a case like this, that is very likely to be hard fought and potentially take years, is not one that most lawyers want on contingency.
IF you had been in a prior version of the will and/or would inherit under intestate succession (the rules who who gets what when there is no will), then you could bring the lawsuit yourself, "pro se," without an attorney. But if you would not have inheritied, only your son, you need a lawyer, unfortunately, because a non-lawyer cannot represent other people, even their children. You need to have been personally cut out by the will to bring your own challenge as a non-lawyer.
You are right in that undue influence can be grounds to challenge a will, but you have to show that the person(s) accused of having undue influence effectively cut the testator (person making the will) off from the outside world and that the testator depended on that person(s) for care and/or social contact--that is, you have to show a high level of dependency which the other person improperly leveraged or manipulated to get a change made to the will which ordinarily or reasonably, the testator would not have made on his/her own.
If your grandfather was heavily medicated at the time he made the will, you may also be able to challenge the will on lack of capacity: that at the time he made it, he was not mentally competent to make a will due to drugs which affect thinking or coginition. If he died within a few days from cancer, there is a good chance that he wa so medicated. That could provide an alternative basis for challenging the will, but you still face the hurdle of finding an attorney to help you.
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