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Jewish World Review April 18, 2005 / 9 Nisan, 5765 Was the will stolen — or revoked? By Jan L. Warner & Jan Collins
http://www.JewishWorldReview.com |
Q: I am one of three children. When my mother prepared her will three
years ago, she sent each of us a copy of her will with a handwritten
note explaining that her original will would be found in the family
Bible in her bedroom on her dresser. In that will, she divided her
estate into four equal shares — one for me and each of my siblings, and
one for my oldest daughter, who had always been her favorite grandchild.
She named me as her personal representative to handle her estate. I had
nothing to do with her decisions, and she had gone to her longtime
family lawyer by herself.
While I appreciate my mother being up front with everyone, which was her
style, the fact that she named me — the youngest — as her
representative and gave my daughter a child's share did not sit well
with my siblings, who have said little to me since then.
When Mom died earlier this year, I went to her home to get the original
will from her Bible (she had showed it to me before), but it was nowhere
to be found. I did find a copy of her will with a copy of the letter she
had sent each of us. I searched high and low for the original, and could
not find it. I went to her lawyer, who had a receipt signed by my mother
acknowledging she had taken the original with her. He told me that she
was perfectly satisfied with the will as written and had not come back
to his office to change it. He was the only lawyer she and my father
ever used.
I went to my brother and sister and asked if they would agree to the
copy being filed with the court, but they both refused. I have seen a
lawyer, who told me that it would be next to impossible to use the copy
under the circumstances. While I don't like to think that my brother or
sister removed the original to gain a larger share, I can't imagine any
other scenario. Is there any way I can carry out my mother's wishes?
A: While the precise answer to your question depends on the law of your
state, with most situations where a last will and testament is retained
by the person signing it (here, your mother), and cannot be found at
death, it's presumed that the will was destroyed by the signatory
(called a "testatrix" if a female, and "testator" if a male). However,
this presumption can be rebutted by contrary evidence, but the burden
would be on you as the proponent of the will to prove the will had not
been revoked.
Some of the factors that may be considered include statements from your
mother that she did not intend to revoke the will, evidence that until
her death, she maintained a loving attitude toward your granddaughter,
and evidence that others had access to the will before your mother's
death. While you believe that one of your siblings may have destroyed or
removed your mother's will to gain a financial advantage, there is no
legal presumption this happened — even though the motive was present.
Because folks generally don't keep a logbook or diary of when family
members come to visit, we believe that despite what appears to be a
clear motive to cut out your daughter, your battle will be uphill and
expensive. Everyone knew where the will was located, and there are other
possibilities that we don't believe will allow you to overcome the
presumption of revocation. For example, your mother may have taken it
from the Bible, forgot to put it back, and it was thrown out with the trash.
While it may be inconceivable to some that this kind of thing goes on,
there are protections that can and should be put in place: 1) Tell only
your personal representative where your will is located. If in a safe
deposit box, consider placing the name of your personal representative
on the signature card and giving him or her a key, assuming little else
is in the box; 2) Leave your original will with your lawyer and have him
or her put it in his/her safe, but be sure to get a receipt. The
drawback here is that your lawyer may die or retire or you may forget
where you left your will; 3) Sign two or three duplicate original wills
so that you can retain one, your lawyer can keep one, and you can give
an original to your personal representative; and 4) make a decision as
to whether you want to start the family feud before you die or afterward
if you leave your estate other than equally to your children. Sometimes,
as in the case here, being forthright and up front may not be the safest
policy.
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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. © 2005, Jan Warner |
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