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Jewish World Review Feb. 21, 2005 /12 Adar I, 5765

Jan L. Warner & Jan Collins

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Consumer Reports

Mom may have written me out of her will | Q: Since my 85-year-old widowed mother still lives in our hometown, which is more than 1,000 miles away from where my family settled, my brother and sister have spent much more time with her over the past 20 years. During my visit over Christmas, I found her to be much more feeble than she was last summer, and her short-term memory seemed much worse.

When I talked to my siblings about this, they told me that everything was under control because Mom had signed a power of attorney giving them the authority to help her with her financial and health decisions. They said she left me off the document because I was so far away. She owns her home, located on several choice acres, and has some money, but I don't know how much. My mother seemed remote and did not want to talk to me about her finances.

I think that she can and has been swayed away from me and my family. I also get the feeling that she has now excluded me from her will. I went to the lawyer who I think prepared it (I got his name from the recorded power of attorney), but he would not talk to me. Is there a way to find out if she signed a new will? And, if so, can I get a copy of it? And can I get it vacated if she did sign it because she is very vulnerable to the wishes of my brother and sister?

A: First of all, the legal test of whether or not a person had the capacity to make a will is whether that person (1) knew what he/she owned, (2) knew the objects of her affection (that is, her family members), and (3) knew to whom she wanted her property to be distributed at her death.

It is important that you understand that no one need prove that your mother has a reasonable basis upon which to base her desired distributions or that your mother had actual knowledge or understanding. In fact, even if your mother was insane, she could have the capacity to sign a will if she did so during an interval of sanity, sometimes called a "window of lucidity."

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This means that even a judicial decision that your mother was insane is not conclusive of her capacity to make a will. Nor is a finding by a court that your mother requires a guardian or conservator to assist her with her finances or other decisions. In other words, even if your mother was impaired due to mental deficiency, physical illness and disability, and/or advanced age to the extent that she was unable to understand or communicate responsible decisions concerning her person or property, she might still have the capacity to sign a will.

Second, a lawyer who represented your mother could not and should not discuss with you or anyone else what work was accomplished without an appropriate waiver or order by a judge after notice to your mother. Third, even if your mother signed a will, you can't bring litigation to vacate it until the document is presented to a court for probate after her death.

Fourth, based on the little you have told us, there are family issues here that should be resolved, if possible, before irreparable damage is done. We suggest that you try to discuss how you feel with your siblings. This may or may not work; however, it is worth the effort, as we don't believe your mother lacks capacity to make a will.

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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.


Ensuring gifts to grandkids are used for college
Readers rail against politicians; homes showing less restraint
Can I be paid from my uncle's cash?
How can we afford my husband's rehab?
Rule your money from the grave
Planning from a distance
Our fight to improve Mom's care
The long path to deducting at-home care
Getting respite for adult caregivers
Do we tell the kids they're not in our plan?
HIPAA hurts careless life planners
Son's sins infect Mom's care
The sudden pitfalls of an immediate annuity
Furious at home's poor care of Mom
How the government bilks seniors
Solid answers about osteoporosis
The taxing affair of gift giving
Searching for a facility that offers independence
Does anesthesia enfeeble the elderly?
Warning about 'Do Not Resuscitate' (DNR)
Why is Mom such a hoarder?; Medicaid law may leave child homeless
Brother's reaction to Mom's death angers siblings
Unwisely reducing drug dosages
Why is my sick husband frantic at sundown?
Are Dad's living expenses tax-deductible?
Recovering confidence after a fall
How do I plan my estate?
My parents need a caring lawyer
Can banks reject powers of attorney?
Tech innovations help parents remain home
Looking back for a healthy future
Alzheimer's-stricken Mom is destroying marriage
A cautionary tale of quick-fix mortgages
Why can dad's new wife control his life?
Sister's early death sparks family estate war
Poor financial planning leaves Dad cash-strapped
How do I protect my parents from falling?

Bad 'Will' makes seniors prey
Bankrupt seniors now the debt generation
How can we help ease Dad's depression?
Compensating sister for Mom's care; purchasing life insurance policies from terminally ill individuals
My aunt profited from grandpa's weak will; foreclosing against senior is best
Pay employer taxes for caregivers?
Help Mom organize her finances
Where can seniors get the best health info?
How do we stop our mooching daughter?
Can you stop a double-dealing lawyer?; caregiver red flags
How the government bilks seniors
Dad's new wife took the inheritance
Parents' trustee choice a hidden blessing
Finding the money for home care
Elderly mom is sweet on a hunky aide
'Ziva' gets the scoop on nation's nursing homes
Care decisions for 'elder orphans'
Seeking help for dementia victims
Read admission-package 'agreements'; booting a patient once Medicaid kicks in
Can the kids block our cash flow?; childless couple agonizes over whether to use
powers of attorney or a living trust to manage our assets

Control your assets from the grave
Slacker son will blow his fortune; lawyer's role in "estate-planning"
Mom remarried and spent my inheritance; doesn't want daughter-in-law to receive anything from estate
Can we stop our brother from swindling us?
What Gifting Will Disqualify You From Medicaid
The 'magic' language for a power of attorney agreement
Is care insurance a healthy choice?
Is there protection against Medicaid costs?
Long-term care insurance comes up short
HIPAA -- too much privacy?; nursing home doc could care less
Private pay nursing home residents pay more
Separated families should use care managers
What Makes Up a Caregiving Team?
Who is the client, parents or children?:

© 2004, Jan Warner