Mom may have written me out of her will

http://www.NewsAndOpinion.com | 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."

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.

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