Worth fighting a will in Virginia?

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mkawasaki
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Worth fighting a will in Virginia?

Post by mkawasaki »

My fiance has a very unfortunate situation. Her father just died and now we're learning that the Will was significantly changed 5 years ago, when he began showing signs of dementia. He was remarried 25 years ago.

Question: is it worth fighting a will in Virginia?

We have two thoughts continuing to run through our mind:

* This is 'wrong' and we can't let this occur with a good conscience.

* The odds of winning are slim and shouldn't waste our own money to fight it (one lawyer said "better to spend your money on therapy than fight a will".)

Quick facts:
* We do not know the size of the assets (assume $1-$2M, as they have been staying in a very expensive facility last 3 years)
* Original will had 1/3 of assets going to my fiance upon death; my fiance was the Executor of the will.
* New will has all assets going to the wife/stepmom if the father died first, and 1/9 going to my fiance if he died second. My fiance was still named the Executor of the will, unless he named someone else. The stepbrother told us "he named me".
* The stepbrother stated "I will send you the latest will as required because you are an Heir at Law." Makes us wonder if there was a later change.
* The stepmom also has signs of dementia and one of her sons is controlling all communication (she has 7 children).
* The stepbrother sent us an email stating "We believe you won't accept the will so we've signed up a Laywer, Mr. xxxx." We can Mr. xxxx and he said discussed topic with the family but has not been hired on retainer.
* The father admitted a few years ago, "I didn't understand that was the change and will fix it." However, after that the Stepmom controlled all communications and would not allow us unfettered access to him.
* We are financially stable and don't require any inheritance funds. Our intent would be to pass on to the grandchildren.
* We live in California, the father died in Fairfax County, VA.

The entire situation is stressful, frustrating and disheartening. I want to just "move on" with our lives; yet my fiance can't let it go.

Know from discussion with other friends that this is a common occurrence, unfortunately.

Appreciate any advice, or a connection to a good Fairfax County lawyer :D .

Thanks,
Mike
delamer
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Re: Worth fighting a will in Virginia?

Post by delamer »

There’s a difference between fighting a will and making sure you are receiving all the information and inheritance to which you are entitled.

Check the bar association for attorneys specializing in estate law and talk to one about representing your interests.
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8foot7
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Re: Worth fighting a will in Virginia?

Post by 8foot7 »

What do you allege happened that was wrong?
Just because your fiance's share was reduced does not mean anything illegal happened. Even if the change was not intended, the change may very well still be valid legally. "He didn't mean to do that five years ago" is a really weak position, especially if new wife and the children they share have been in the family for 25 years and not just a near-death remarriage.
If your fiance is executor then she will have -- or can require others to provide -- access to all documents and money necessary to carry out the role. At least then with the transparency that position offers, she will have some questions answered.
Makefile
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Re: Worth fighting a will in Virginia?

Post by Makefile »

I don't know the answer but thought it worth pointing out that heirs, like parties in any other lawsuit, can make a settlement agreement rather than fight to the bitter end. So the disinherited heirs (did the other 2/3 go entirely to the surviving spouse?) could raise these issues against the estate and then immediately offer to settle for less than 1/3 just to go away.
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Re: Worth fighting a will in Virginia?

Post by ScubaHogg »

8foot7 wrote: Sun May 16, 2021 11:20 am What do you allege happened that was wrong?
Just because your fiance's share was reduced does not mean anything illegal happened. Even if the change was not intended, the change may very well still be valid legally. "He didn't mean to do that five years ago" is a really weak position, especially if new wife and the children they share have been in the family for 25 years and not just a near-death remarriage.
If your fiance is executor then she will have -- or can require others to provide -- access to all documents and money necessary to carry out the role. At least then with the transparency that position offers, she will have some questions answered.
Did you read the OPs post?

“Her father just died and now we're learning that the Will was significantly changed 5 years ago, when he began showing signs of dementia.”

The claim is that the father wasn’t of sound mind when the will was changed
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Gill
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Re: Worth fighting a will in Virginia?

Post by Gill »

8foot7 wrote: Sun May 16, 2021 11:20 am What do you allege happened that was wrong?
It appears OP is claiming the testator was incompetent to execute a will because of dementia.
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Normchad
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Re: Worth fighting a will in Virginia?

Post by Normchad »

Gill wrote: Sun May 16, 2021 11:26 am
8foot7 wrote: Sun May 16, 2021 11:20 am What do you allege happened that was wrong?
It appears OP is claiming the testator was incompetent to execute a will because of dementia.
Gill
As written, it sounds weak. “Starting to show signs.....”. Was there a diagnosis?

This was the fathers money, to do whatever he wanted with. It isn’t their money....... I’d guess in most cases, spouses leave everything to their surviving spouse of 25 years...... and I believe, in Virginia, if you don’t have a will, this is exactly what would happen. It would all go to the surviving spouse.

Contest it if you want though..... the odds of changing it seem almost impossibly slim......

If I were remarried, and wanted to ensure that my inheritance went to my biological children, I’d use a trust for that. And if the father wanted that, his lawyer should have used a trust for that. It doesn’t sound like there is any documented evidence that the deceased wanted that.
Mr. Rumples
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Re: Worth fighting a will in Virginia?

Post by Mr. Rumples »

Here it goes, based on my experience in VA as a non-lawyer. First, if an out of state resident is the executor, they must appoint someone who lives in VA as an agent.

Once the process starts, and the court approves the executor, there are time frames which must be adhered to regarding notification, fees, inventory and so forth. How out of state heirs are handled I haven't a clue.

Virginia uses a unique system of Commissioner of Accounts which is through the Circuit Court in VA where the will is being probated. So you will need to be sure that it is Fairfax County. Their website should be helpful. Assuming Fairfax County, you can't check the VA Courts Case Information System to see if you are named as a defendant in any civil cases related to this, you'd need to see how the county handles it. (We were named in a case related to an estate.) He died in Fairfax, but where was his legal residence? That is, did he die in a hospital in Fairfax and was the facility /home where he resided in a different county? That will have a bearing on which Circuit Court handles the estate.

http://www.courts.state.va.us/courts/ci ... rginia.pdf
http://ewsocis1.courts.state.va.us/CJISWeb/circuit.jsp

https://www.fairfaxcommissionerofaccoun ... ource.home
https://www.fairfaxcommissionerofaccoun ... ss.estates
http://www.courts.state.va.us/courts/ci ... /home.html
https://www.vba.org/page/guide_estates
https://law.lis.virginia.gov/vacode/tit ... n64.2-200/

(My understanding, at least in VA, was that heir at law was only if there was no will. Finding a lawyer is essential once these terms start getting thrown around.)

My estate attorney charged $350 an hour; my guess is its more now in northern VA. That was a few years ago. Having case go to court and that adds up fast.
Last edited by Mr. Rumples on Sun May 16, 2021 12:04 pm, edited 10 times in total.
sailaway
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Re: Worth fighting a will in Virginia?

Post by sailaway »

Married for 25 years and the stepmom needs care ("they have been living in an expensive facility")?

Save for your own children and if this really bugs you, make sure your own estate plans avoid such issues.

I think I like the lawyer who said to spend money on therapy, instead of this fight. It might be different if you had talked to an elder care lawyer five years ago when you first thought there might be undue pressure on a dementia patient or in the intervening time when not allowed unfettered access.

I wish your fiance the best in her grieving process.
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TomatoTomahto
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Re: Worth fighting a will in Virginia?

Post by TomatoTomahto »

IANAL, but I would have thought that fiancé, as executor 5 years ago, should have been notified that the will was changed and/or if she was no longer the executor. I might be completely mistaken for applying logic.
I get the FI part but not the RE part of FIRE.
Mr. Rumples
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Re: Worth fighting a will in Virginia?

Post by Mr. Rumples »

Its a courtesy to notify removal as executor, but a requirement in VA.
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8foot7
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Re: Worth fighting a will in Virginia?

Post by 8foot7 »

ScubaHogg wrote: Sun May 16, 2021 11:24 am
8foot7 wrote: Sun May 16, 2021 11:20 am What do you allege happened that was wrong?
Just because your fiance's share was reduced does not mean anything illegal happened. Even if the change was not intended, the change may very well still be valid legally. "He didn't mean to do that five years ago" is a really weak position, especially if new wife and the children they share have been in the family for 25 years and not just a near-death remarriage.
If your fiance is executor then she will have -- or can require others to provide -- access to all documents and money necessary to carry out the role. At least then with the transparency that position offers, she will have some questions answered.
Did you read the OPs post?

“Her father just died and now we're learning that the Will was significantly changed 5 years ago, when he began showing signs of dementia.”

The claim is that the father wasn’t of sound mind when the will was changed
I sure did read the post. "Beginning to show signs of dementia" is a far cry from "was totally out of it and not within his faculties to direct his own money."

I don't think it's weird for him to cut in his then-wife of 25 years and have all assets pass to her. Your position would be that he was not of sound mind to...direct his assets to the person he was married for a quarter-century, especially if she was beginning to be in declining health?

Also, in the event he was the second to pass, moving from 1/3 of the cut for the fiance to 1/9 of the cut with seven additional children as a result of a remarriage a quarter of a century ago does not seem strange at all; rather I think one could paint a picture that, while still within father's faculties, father wanted to make sure of relatively equal distribution among all children.
Last edited by 8foot7 on Sun May 16, 2021 11:56 am, edited 1 time in total.
sailaway
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Re: Worth fighting a will in Virginia?

Post by sailaway »

ScubaHogg wrote: Sun May 16, 2021 11:24 am
8foot7 wrote: Sun May 16, 2021 11:20 am What do you allege happened that was wrong?
Just because your fiance's share was reduced does not mean anything illegal happened. Even if the change was not intended, the change may very well still be valid legally. "He didn't mean to do that five years ago" is a really weak position, especially if new wife and the children they share have been in the family for 25 years and not just a near-death remarriage.
If your fiance is executor then she will have -- or can require others to provide -- access to all documents and money necessary to carry out the role. At least then with the transparency that position offers, she will have some questions answered.
Did you read the OPs post?

“Her father just died and now we're learning that the Will was significantly changed 5 years ago, when he began showing signs of dementia.”

The claim is that the father wasn’t of sound mind when the will was changed
OP also states that they knew about the changes years ago. It seems like in hindsight they put 2+2, but they haven't actually learned anything new.
neverpanic
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Re: Worth fighting a will in Virginia?

Post by neverpanic »

Is your wife an only child? She can argue undue influence, but there is nothing at all unreasonable about leaving the majority of one's estate to a spouse of 25 years.

Without knowing anything about your wife or her relationship with her father, I understand where she's coming from. Her feeling that she's essentially been cheated is both normal and reasonable, even though she is only looking at any potential inheritance for legacy purposes. Based upon your estimate of the size of the estate and the fact that you live in CA, it's not worth the fight. She could initiate a challenge simply to annoy the others and let them know how she feels, but if your father-in-law was married for 25 years and had 9 heirs - his spouse, plus a daughter and 7 other step-children - I don't see how any one of them other than his wife could claim more than 1/9th.
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galawdawg
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Re: Worth fighting a will in Virginia?

Post by galawdawg »

IANYL and am not admitted in Virginia. That being said, assuming your fiancé believes that her father was not competent at the time the will was changed, here are a few things she may wish to consider:

1. Was her father diagnosed as suffering from dementia? If so, when did that diagnosis occur in relation to the date the will was modified? Who held the opinion that he was beginning to "show signs of dementia"? If your fiancé alleges that her father was not competent to execute the new will, it will be difficult for him to then argue that the more recent statement ""I didn't understand that was the change and will fix it" was a reliable indication of his intent.

2. Assuming that her father was suffering from dementia, who handled his financial affairs? Was there a power of attorney and/or guardian? If your fiancé or one of her siblings or other close family member did not step in and take action in this regard when her father became "incompetent", it again will be more difficult to now assert that he lacked the mental capacity to change the will.

Based upon your report that the modification named his wife of twenty-five years as the beneficiary and (I assume) each of the children and stepchildren as secondary or contingent beneficiaries, it appears to have been a well-reasoned and logical plan. It is most common, even with blended families and second or subsequent marriages, for a person to leave all of their assets to their spouse. Sometimes provision is made for children and/or stepchildren, sometimes not. The end result is often a reduction or even elimination of an inheritance to a child, particularly if the surviving spouse is a step-parent who does not make provision for the step-children in their will. That is an unfortunate consequence to divorce and remarriage which can be avoided through proper estate planning and the use of an appropriate trust.

Certainly your fiancé may wish to consult with an attorney in northern Virginia who handles estate litigation and will contests about her legal options. She should understand up front that pursuing a will contest will almost certainly be a stressful and expensive process.

My condolences for the loss. Best wishes.
Last edited by galawdawg on Sun May 16, 2021 12:18 pm, edited 1 time in total.
Mordoch
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Re: Worth fighting a will in Virginia?

Post by Mordoch »

Unless the father was actually diagnosed with dementia around five years ago, the odds of wining a legal fight would appear to be simply be zero at this point at least regarding any change from 5 years ago. (Barring an unlikely admission in writing from the stepmom that she knew he was legally incompetent to change the will at that point.)

The problem is you simply can't prove he was not of proper sound mind 5 years ago at this point (when the change was made) from what you have said so far, and apparently knowing for years about this and not taking legal action would further strongly undermine any possible legal case. (For good measure giving most of the money to a stepmom he has been married to about 25 years along with any stepchildren and other children is not going to be viewed as inherently unreasonable by a court, it is not like he married some 20 year old or changed the will to give it all to a caretaker at the last moment.)

The only relevant question would be ensuring you know what the current will says and nothing dramatic was changed recently, and making sure no funny business goes on with the current executor in terms of at least carrying out the terms of the current will. (Even with a recent change the issue would be actually proving dementia if not previously diagnosed, with a related problem being you can't exactly demand he be tested at this point.)

Its worth noting it anything your fiancée being the executor would seem to be outright undesirable at this point. If she was the executor she would need to carefully carry out the terms of the current will and would get sued (successfully) by the other relatives if she tried to defacto change how it is implemented after the fact if anything. (For that matter, with 8/9s of the money going elsewhere, she would have to be incredibly careful about how she charged any expenses as the executor or she could get sued even if she was not that unreasonable about it.)

Basically given a lawyer has already looked at the case this is simply a scenario where all suing will do is cost more money with no positive result. (The only exception would be if you now realize there is some seemingly critical detail or two which might change the legal case which you failed to bring up the first time.) If you really want to, you could conceivably see about a presumably free consultation with a second lawyer, although this might be best once you have a copy of the current will.

In general this situation shows why you need to a address a situation involving possible dementia and a will change promptly instead of waiting until after the person dies when it generally is going to often be simply too late.

Edit: Upon review I see that she does not get any money in this scenario, but this does not change the basic points. It does mean she should have zero reason to actually want to be the executor in this situation, even if handling it might be relatively straightforward from her perspective given the details.
Last edited by Mordoch on Sun May 16, 2021 12:41 pm, edited 1 time in total.
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Squirrel208
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Re: Worth fighting a will in Virginia?

Post by Squirrel208 »

I know from firsthand experience with my deceased father that suffering from dementia doesn't preclude someone from having the testamentary capacity required to execute a will. Through the later stages of his life I was his caregiver, power of attorney, and eventually the personal representative for his estate after his passing. During the earlier stages of his dementia, when his symptoms were becoming increasingly obvious and troublesome, Dad and the family worked together with estate attorneys and myself to update his estate documents to provide me with the legal powers described above.

The legal challenge incumbent upon the OP's fiance, if she chooses to contest the validity of the new will due to her father's mental state at the time he executed it, will be to provide sufficient evidence that her father lacked sufficient testamentary capacity or was otherwise under undue influence when he signed it. By default it will be assumed that he was of sufficient "sound mind", even if he exhibited some symptoms of dementia at the time. IMHO her geographic and social separation from her father, as described in the OP, will make this challenging to prove without some very clear supporting evidence.

Below are few links to the topic specific to Virginia, which I found with some help from Google:
What It Means to Have “Testamentary Capacity” in Virginia?
Validating A Will In Virginia
What degree of testamentary capacity is required under Virginia law to make a will?
Estate Disputes: Testamentary Capacity in Virginia
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8foot7
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Re: Worth fighting a will in Virginia?

Post by 8foot7 »

Mordoch wrote: Sun May 16, 2021 12:17 pm

Its worth noting it anything your fiancée being the executor would seem to be outright undesirable at this point. If she was the executor she would need to carefully carry out the terms of the current will and would get sued (successfully) by the other relatives if she tried to defacto change how it is implemented after the fact if anything. (For that matter, with 8/9s of the money going elsewhere, she would have to be incredibly careful about how she charged any expenses as the executor or she could get sued even if she was not that unreasonable about it.)
The way I read the OP, fiance can be executrix and just distribute everything to stepmom. While fiance could still decline to serve (and maybe should), there seems little opportunity for anyone to get upset at giving everything to stepmom if that's what the will says.
Mr. Rumples
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Re: Worth fighting a will in Virginia?

Post by Mr. Rumples »

One other thing to consider is the case backlog in VA. I can't find recent data, but a year ago the case backlog in VA for all cases was 670,000 yes, hundreds of thousands. (Criminal, civil, domestic relation, district and circuit). I doubt it got better during all the shutdowns. This adds to legal fees.
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mkawasaki
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Re: Worth fighting a will in Virginia?

Post by mkawasaki »

galawdawg wrote: Sun May 16, 2021 12:15 pm

1. Was her father diagnosed as suffering from dementia? If so, when did that diagnosis occur in relation to the date the will was modified? Who held the opinion that he was beginning to "show signs of dementia"? If your fiancé alleges that her father was not competent to execute the new will, it will be difficult for him to then argue that the more recent statement ""I didn't understand that was the change and will fix it" was a reliable indication of his intent.

2. Assuming that her father was suffering from dementia, who handled his financial affairs? Was there a power of attorney and/or guardian? If your fiancé or one of her siblings or other close family member did not step in and take action in this regard when her father became "incompetent", it again will be more difficult to now assert that he lacked the mental capacity to change the will.

Based upon your report that the modification named his wife of twenty-five years as the beneficiary and (I assume) each of the children and stepchildren as secondary or contingent beneficiaries, it appears to have been a well-reasoned and logical plan. It is most common, even with blended families and second or subsequent marriages, for a person to leave all of their assets to their spouse. Sometimes provision is made for children and/or stepchildren, sometimes not. The end result is often a reduction or even elimination of an inheritance to a child, particularly if the surviving spouse is a step-parent who does not make provision for the step-children in their will. That is an unfortunate consequence to divorce and remarriage which can be avoided through proper estate planning and the use of an appropriate trust.

My condolences for the loss. Best wishes.
Thanks everyone for the posts on a Sunday morning! Especially galadawg for the condolences wishes!

Few extra facts (that don't believe make our case any stronger but sharing in case more insights available from the Community) that address above questions and few others posted:

* Father went into memory care a few (~3) years ago, but the last will change we know about was 5 years ago.
* There are 7 step children, the hurtful part is he never even met some of them during 25 years of marriage.
* The Father verbalized that he wanted part of his money to go to daughter upon death, put in the first will, but changed in the last known will and admitted he misunderstood it (I read it and written confusingly so anyone with diminished mental resources could easily have misinterpreted).
* It was a difficult situation as living 2,500 miles away and any challenges were met with Stepmom blocking all communication and making threatening remarks; and my fiance had limited financial means at that time.
* The stepmom made all financial decisions for the couple, yet suddenly within one week of the fathers death stepmom allegedly said "Mom isn't competent to manage these affairs so she has signed over power of attorney and asked me to be Executor", per email from one stepbrother. Hearing this from the stepbrother who received power of attorney.
* Daughter had a very strong and close relationship with the Father -- he even moved to help care for fiance's daughter for 7 years. This all changed 5 years ago when the Stepmom made all communications go through her.

Truthfully, this is about emotions and to quote my fiance "they are diminishing the relationship I had with my father." I'm a terribly rationale person -- yet clearly this is not about the money/will but recognizing the relationship and honoring her father. Think many years of pain coming to a head during this difficult time.

Sincerely, Mike
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Re: Worth fighting a will in Virginia?

Post by Prahasaurus »

Not going to comment on the legality of all of this (not a lawyer), but as someone who had a family member go through something similar, I would strongly advise you to seek some type of professional counseling for your fiancé, or at the very least bring in someone whom she greatly respects who can assist you in guiding her to the right decision. This is something that can quickly turn into a very unhealthy obsession. And that can lead to irrational decisions that will likely prove costly, both financially and psychologically.

If a competent lawyer advises you to just let it go, you will likely need more support to convince your fiancé this is the right course of action. Expect lots of talk about how this is "not about the money" and she just cannot allow this family to "take advantage of her dead father," it's more about the principle, etc., etc. She will make it very personal. And what will then happen is you will spend a lot of time and money for nothing, and her anger and frustration will grow and grow with each new setback. And this could cause a serious rift in your relationship, especially if you are not on her side (in her mind) to fight this terrible injustice (in her mind)...
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tibbitts
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Re: Worth fighting a will in Virginia?

Post by tibbitts »

I'm not an expert or an attorney, but I don't see this being resolved in your favor. It's just fortunate that you don't really need the inheritance, although I understand you feeling it's more about principle. For the amount of money involved I can't believe it would be worth contesting the will, with essentially having to reconstruct events (and to some extent the mindset of someone who's now passed away) from five years ago.

I'd guess that it wouldn't be that unusual for the entire estate to pass to the spouse in this situation. What's missing are the elements of a trust that would somewhat control the expenditure of funds from the estate (presumably for the benefit of the surviving spouse), and determine what would be done with any remaining after that. But this was a will, not a trust, and just doesn't have that element of control. I think you lost your opportunity to influence the process when you didn't push for a trust earlier on, although admittedly it might have been possible for things to go wrong in that situation, too. To some extent you have to rely on other people doing the right thing (or at least a reasonable thing) in this situation.

It's good that you posted this, though, as it might help others at least attempt to avoid this situation.
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galawdawg
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Re: Worth fighting a will in Virginia?

Post by galawdawg »

mkawasaki wrote: Sun May 16, 2021 12:35 pm * The Father verbalized that he wanted part of his money to go to daughter upon death, put in the first will, but changed in the last known will...
Your fiancé may wish to explore whether her father named her as a beneficiary on any life insurance policies or investment accounts. It is possible that he made some provision for her in that manner...
BillWalters
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Re: Worth fighting a will in Virginia?

Post by BillWalters »

This seems close to hopeless, absent more information. There doesn’t seem to be any legally significant evidence of dementia at the time of the change, and the “new” estate plan seems very reasonable.
TSR
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Re: Worth fighting a will in Virginia?

Post by TSR »

Lawyers who work in elder care -- who are occasionally guilty of some gallows humor -- describe the mental state required to execute or reform a will as "better than broccoli." That is, anything north of vegetable will do. Although offensive, it is descriptive. The policy reasons for this are pretty obvious: we want to encourage people who don't have wills to get them, and a lot of times that means doing it on a death bed, right before surgery, after someone learns that they are suffering from dementia but before they are too far gone, or in other states that are not normally when people are at their best. It also reflects a policy decision that mental state is a terribly difficult thing to prove in court, so we want to err on the side of letting the will be the best expression of someone's wishes, even if it was made under less than perfect conditions.

The point of all of this is to say that it is very hard to prove undue influence, and your additional facts don't help a lot (as you've recognized). You do need to see a copy of the will, and I would certainly be curious to know whether there was anything fishy in the timing of the execution of the will. If there was a lawyer involved, you might want to give them a call.

I would also be curious to know what stepmom's will says. It could be that they executed joint wills that are supposed to leave everything to everyone's kids. (This could be reformed after the father's death, of course, but who knows.) My point there is that your fiancée may still benefit from playing nice with stepmom, either financially or just because realistically speaking stepmom is going to be the closest connection to fiancee's father's memory. Getting set on a litigation posture could ruin that forever. It is worth consulting with (your fiancee's own) lawyer, but I agree with others that money may better be spent on therapy/grief counselling to come to terms with the lousy parts of this that are likely not fixable now.

My condolences. It's a bad situation.
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Re: Worth fighting a will in Virginia?

Post by ScubaHogg »

8foot7 wrote: Sun May 16, 2021 11:51 am

I sure did read the post. "Beginning to show signs of dementia" is a far cry from "was totally out of it and not within his faculties to direct his own money."

I don't think it's weird for him to cut in his then-wife of 25 years and have all assets pass to her. Your position would be that he was not of sound mind to...direct his assets to the person he was married for a quarter-century, especially if she was beginning to be in declining health?

Also, in the event he was the second to pass, moving from 1/3 of the cut for the fiance to 1/9 of the cut with seven additional children as a result of a remarriage a quarter of a century ago does not seem strange at all; rather I think one could paint a picture that, while still within father's faculties, father wanted to make sure of relatively equal distribution among all children.
Maybe, maybe not. No idea. But you asked what the alleged wrong doing was and reading between the lines of the OP it was "a drastic change to the will to benefit non-blood family members after the father started showing signs of dementia."

It's not a crazy position. And to play devil's advocate, one wonders why the father didn't set the will up in the previous 25 years and waited till dementia set in/began?
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namajones
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Re: Worth fighting a will in Virginia?

Post by namajones »

mkawasaki wrote: Sun May 16, 2021 10:50 am My fiance has a very unfortunate situation. Her father just died and now we're learning that the Will was significantly changed 5 years ago, when he began showing signs of dementia. He was remarried 25 years ago.

Question: is it worth fighting a will in Virginia?

We have two thoughts continuing to run through our mind:

* This is 'wrong' and we can't let this occur with a good conscience.

* The odds of winning are slim and shouldn't waste our own money to fight it (one lawyer said "better to spend your money on therapy than fight a will".)
I do not believe in fighting wills. The deceased's last wishes may not align with yours, but it was not your will. Respect for the last wishes of the deceased is the right course of action.
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Re: Worth fighting a will in Virginia?

Post by namajones »

ScubaHogg wrote: Sun May 16, 2021 11:24 am
Did you read the OPs post?

“Her father just died and now we're learning that the Will was significantly changed 5 years ago, when he began showing signs of dementia.”
This is an attempt to create cause and effect. It's weak logic, and it won't work in court.

What's more, the entire attempt sullies the dignity of those making the attempt.

Take the high road. Let the last wishes of the deceased stand. Move on.

Personally speaking, if I found out that someone in my will was the type who would contest wills, I'd write them out of the will. In fact, I have a clause in my will about this very thing:

"Any beneficiary under this my will who shall institute, prosecute, or abet any action to contest or to set aside in whole or in part this my will shall be excluded from any share or interest in my estate...," etc.
Last edited by namajones on Sun May 16, 2021 1:22 pm, edited 2 times in total.
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8foot7
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Re: Worth fighting a will in Virginia?

Post by 8foot7 »

ScubaHogg wrote: Sun May 16, 2021 1:03 pm
It's not a crazy position. And to play devil's advocate, one wonders why the father didn't set the will up in the previous 25 years and waited till dementia set in/began?
It would not be the first, nor will it be the last, time someone decided to either start getting their affairs in order or revisit their existing plans when confronted with a life altering or sometimes terminal illness.
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Re: Worth fighting a will in Virginia?

Post by Mordoch »

ScubaHogg wrote: Sun May 16, 2021 1:03 pm Maybe, maybe not. No idea. But you asked what the alleged wrong doing was and reading between the lines of the OP it was "a drastic change to the will to benefit non-blood family members after the father started showing signs of dementia."

It's not a crazy position. And to play devil's advocate, one wonders why the father didn't set the will up in the previous 25 years and waited till dementia set in/began?
The problem is legally speaking this issue is irrelevant on its own and an utter waste of the court's time without further information. Especially in the US, it is not the court's job to make sure a will seems inherently perfectly fair to everyone.

The problem is the OP's fiancée appears to utterly lack any sufficient proof the dementia had impacted the father to the extent he was not of sufficient sound mind when the changes were actually made 5 years ago (more serious dementia 2 years later does not change this), plus the issue was not disputed in a timely manner. The main thing to check now is making sure the will that actually disinherited her was not more recent since that might change the legal situation although financially there might still be a question is bringing the case would be worth it.

The courts are simply not there to make everyone feel better, and while the fiancée may want to hear from another lawyer to confirm she does not have a case, baring new legally relevant details coming out, counselling would ultimately be the more productive way to spend money.
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Re: Worth fighting a will in Virginia?

Post by MishkaWorries »

mkawasaki wrote: Sun May 16, 2021 10:50 am * The father admitted a few years ago, "I didn't understand that was the change and will fix it." However, after that the Stepmom controlled all communications and would not allow us unfettered access to him.
Your fiance suspected her father was being manipulated and being kept away from people who could help him yet she did nothing to help her father when he needed her help.

Now that there is money involved, she wants to hire lawyers.

If I was on the jury, I'd give her nothing.
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Luckywon
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Re: Worth fighting a will in Virginia?

Post by Luckywon »

The stepbrother is doing your fiance a big favor in asserting that he has been nominated executor. The last thing your fiance needs is to be executor of a Will in which she is not the beneficiary and a large step family in play.
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Re: Worth fighting a will in Virginia?

Post by bsteiner »

mkawasaki wrote: Sun May 16, 2021 10:50 am ...
We do not know the size of the assets (assume $1-$2M ...).
...
The father admitted a few years ago, "I didn't understand that was the change and will fix it." However, after that the Stepmom controlled all communications and would not allow us unfettered access to him.
...
Appreciate any advice, or a connection to a good Fairfax County lawyer.
That suggests there are two possible grounds for a challenge, lack of capacity and undue influence. However, it's difficult to show undue influence by a spouse. The length of the marriage may be a factor, as well as the fact that the Will was signed five years before death when the decedent was only just beginning to decline.

Do you still need someone in Fairfax County?

Another difficulty is that the amount involved may limit the amount of effort you can put into this.
delamer wrote: Sun May 16, 2021 11:10 am ...
Check the bar association for attorneys specializing in estate law and talk to one about representing your interests.
I don't know about Fairfax County, but in most places the ones on the bar association list are usually the ones not to talk to.
Normchad wrote: Sun May 16, 2021 11:31 am ...
If I were remarried, and wanted to ensure that my inheritance went to my biological children, I’d use a trust for that. And if the father wanted that, his lawyer should have used a trust for that. ....
You can challenge a revocable trust for any of the same reasons you can challenge a Will.
Mr. Rumples wrote: Sun May 16, 2021 11:38 am ...
My estate attorney charged $350 an hour; my guess is its more now in northern VA. That was a few years ago. ...
It will be much more than that, especially since the original poster wanted someone good.
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LilyFleur
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Re: Worth fighting a will in Virginia?

Post by LilyFleur »

Yet another cautionary tale.

I think reflecting upon the love that her father showed her when he was of sound mind might be the best course of action at this point for your fiance. Moving to take care of your fiance's child was a huge commitment of time, love, energy from her father. Presumably a move to take care of a step-grandchild was disruptive in the lives of both her father and her stepmother. (Did the stepmother move away from her seven children in order to live near your fiance's child?)

Did the father help your fiance financially at all (other than providing childcare, which is a significant savings for her)?

This affirms my desire to share part of their inheritance with my children while I am alive and not ever to remarry.

Hopefully your fiance believes that your father received the care that he needed during the last five years of his life.
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Re: Worth fighting a will in Virginia?

Post by ScubaHogg »

namajones wrote: Sun May 16, 2021 1:13 pm
ScubaHogg wrote: Sun May 16, 2021 11:24 am
Did you read the OPs post?

“Her father just died and now we're learning that the Will was significantly changed 5 years ago, when he began showing signs of dementia.”
This is an attempt to create cause and effect. It's weak logic, and it won't work in court.

What's more, the entire attempt sullies the dignity of those making the attempt.

Take the high road. Let the last wishes of the deceased stand. Move on.

Personally speaking, if I found out that someone in my will was the type who would contest wills, I'd write them out of the will. In fact, I have a clause in my will about this very thing:

"Any beneficiary under this my will who shall institute, prosecute, or abet any action to contest or to set aside in whole or in part this my will shall be excluded from any share or interest in my estate...," etc.
I’m not claiming the OP has a legal case. I’m clarifying what the OP sees as the problem.

“Personally speaking, if I found out that someone in my will was the type who would contest wills, I'd write them out of the will. In fact, I have a clause in my will about this very thing: ”

The point being that once dementia sets in you aren’t really “you” in a lot of cognitive senses. Just to assume the worst, you’d probably have no problem with a child defending what you would have wanted to happen had nefarious actors not manipulated you after you could no longer make complex decisions.
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Re: Worth fighting a will in Virginia?

Post by Swimmer »

So sorry to hear your story. Is it possible that fiancé’s father recognized that she didn’t need the inheritance but his wife of 25 years did? Particularly since she was living in a very expensive facility? Maybe, despite his love for his daughter, he felt he was doing the right thing?

He may not have even considered the flow to his wife’s children but was concerned for his wife.

OP seems to be guessing wrt value of estate. Maybe decedent was concerned there wasn’t enough to care adequately for his spouse.

Heartbreaking situation. So sorry for you both.
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Re: Worth fighting a will in Virginia?

Post by Katietsu »

I have had two experiences in the last 5 years where a person changed their will in the last year of their life. One case, was very similar to the OP where the second wife of about 25 years went from a 25% share to a 75% share. Did the wife lobby for the change? Yes. She felt that after 25 years, including the last 3 years or so when he had chronic serious health issues, that she should be able to continue to live in the same house with the same car and going to the same restaurants as she had been living. I believe that the child who had their inheritance greatly diminished was not pleased and was hurt.

I had a front row seat to the event. From my perspective, the new will was valid. The deceased did not love his child less because of the change. I do think he felt that his goal was to leave everyone in the best position to go forward with their life. I also believe he felt a duty to the wife that stayed with him during those last challenging years. I hope that a will and a step parent does change the memories for either this child or for the OP’s wife.

I do regret that the wife feels no obligation to include the husband’s child in her will. She sometimes recognizes that it seems unfair but with no recognition that she should change her will to make it more fair.
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Re: Worth fighting a will in Virginia?

Post by TomatoTomahto »

OP, your fiancé has been dealt an unplayable hand. When that happens, the best thing to do is to fold. Sorry.
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Re: Worth fighting a will in Virginia?

Post by bottlecap »

TomatoTomahto wrote: Sun May 16, 2021 4:50 pm OP, your fiancé has been dealt an unplayable hand. When that happens, the best thing to do is to fold. Sorry.
This probably the case, but it's worth a talk to a lawyer.

Sadly, this happens often and there is usually little recourse. Based on what I've seen (albeit limited) is you need seriously strong evidence of a lack of capacity to make it even worth taking the chance of a will contest.

Good luck,

JT
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Re: Worth fighting a will in Virginia?

Post by phxjcc »

My family had a similar experience and we were told to forget it.

The best comment, by a local litigator : "everyone around here, even the judges, think Californians are all rich".

Let it go.
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Re: Worth fighting a will in Virginia?

Post by TimeRunner »

I'd get a copy of the will, get a VA attorney, and if the changes are there, have the attorney tell the Step-Mom that all future communication should come thru him/her, and that you decline the Executor role. Let it be someone else's problem. Set yourself free.
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Re: Worth fighting a will in Virginia?

Post by Big Dog »

namajones wrote: Sun May 16, 2021 1:13 pm
ScubaHogg wrote: Sun May 16, 2021 11:24 am
Did you read the OPs post?

“Her father just died and now we're learning that the Will was significantly changed 5 years ago, when he began showing signs of dementia.”
This is an attempt to create cause and effect. It's weak logic, and it won't work in court.

What's more, the entire attempt sullies the dignity of those making the attempt.

Take the high road. Let the last wishes of the deceased stand. Move on.

Personally speaking, if I found out that someone in my will was the type who would contest wills, I'd write them out of the will. In fact, I have a clause in my will about this very thing:

"Any beneficiary under this my will who shall institute, prosecute, or abet any action to contest or to set aside in whole or in part this my will shall be excluded from any share or interest in my estate...," etc.
As an aside, per the Nolo Press books on estates, wills, they make the point that such clauses are usually good for virtue signaling, but practically worthless from a legal standpoint. If a will is contested in court, it's up to the Judge to decide what's and what's out. In other words, if the one making a claim has a legit case to be made, the Judge can and will award him/her a piece of the action regardless of the clause.
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Re: Worth fighting a will in Virginia?

Post by Watty »

I don't know what all the legal issues are but it would be good to talk to a lawyer that knows the laws in that state and then decide what to do once all the facts are known.

If nothing else that might help you let it go if that is what the lawyer says to do.
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Re: Worth fighting a will in Virginia?

Post by LiveSimple »

I will not fight over the will when 25 years past without a meaningful relation with the dad...
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Re: Worth fighting a will in Virginia?

Post by bsteiner »

Big Dog wrote: Sun May 16, 2021 5:31 pm ...
Personally speaking, if I found out that someone in my will was the type who would contest wills, I'd write them out of the will. In fact, I have a clause in my will about this very thing:

"Any beneficiary under this my will who shall institute, prosecute, or abet any action to contest or to set aside in whole or in part this my will shall be excluded from any share or interest in my estate...," etc.
As an aside, per the Nolo Press books on estates, wills, they make the point that such clauses are usually good for virtue signaling, but practically worthless from a legal standpoint. If a will is contested in court, it's up to the Judge to decide what's and what's out. In other words, if the one making a claim has a legit case to be made, the Judge can and will award him/her a piece of the action regardless of the clause.
[/quote]

If the case goes to trial, it's binary: either the Will is admitted to probate or it isn't.

If you "write the person out of the Will," the in terrorem (if you contest you forfeit) clause has no effect. Since the person isn't getting anything under the Will, he/she has nothing to lose by contesting the Will. You would have to leave the person enough that he/she will be discouraged from contesting the Will.

Note that in many states in terrorem clauses aren't enforceable if the challenger had a reasonable basis for the challenge; and in Florida they're not enforceable at all.
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Re: Worth fighting a will in Virginia?

Post by Broken Man 1999 »

My thoughts, FWTW

!. There is no cause for alarm that father didn't update his will earlier. I am a first class procrastinator myself. Shoulda done it sooner, didn't.

2. A wife of 25 years isn't the same as a wife of 2-3 years who might be a gold-digger.

3. A spousal obligation to the spouse left behind is not only normal, but moral. Obligations to spouses clearly outweigh obligations to children, unless children are minors, which is not the case.

4. The value of father's help for grandchild by fiance is unknown, but it almost certainly had some financial value.

5. The step-mom's children might very well have assisted the step-mom providing care for father.

6. It doesn't appear to me there was a strong bond recently between father and daughter, I could be entirely wrong, though.

As a practical consideration, after step-mother's time in memory care, the residual value of the estate split by her numerous children could very well mean they receive less value than the daughter's help with her child.

Broken Man 1999
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Re: Worth fighting a will in Virginia?

Post by Carefreeap »

Your fiancee needs to obtain a copy of the will before she consults with an attorney.

I'm not surprised that the father left everything to a wife of 25+ years. He wanted to take care of her the way she took care of him. My father did something similar for his gf of 20+ years. Although there's a trust and supposedly any leftover funds are supposed to be split four ways between her three daughters and me. My father cut my brother out of his will.

What was hurtful was that the gf said she couldn't take care of him the last year of his life, tried to dump him on me (I live 500 miles away), wouldn't call him while he was in the nursing home, wouldn't attend a socially distanced memorial for him and forbade her adult children to attend as well. She was really mean to me that last year; screaming at me and hanging up on me while I talked to my dad. It was clear she was having demenia issues as well. I doubt I'll see a dime of that money.

It's been six months since my dad passed. I'm at peace with the situation. There's not enough money to get upset over and I'm grateful I don't need it. I'm especially glad they were happy together for many years. Although I loved my father he was a difficult person to live with.
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Re: Worth fighting a will in Virginia?

Post by Mr. Rumples »

One other caveat about Virginia is that Commissioner of Accounts are appointed positions and its lucrative. I had a relative who was one (he's deceased). Depending on the Commissioner who was assigned to the account, there are conflicts. My neighbor is dealing with this now. His father died, his step mother's son is a partner in the firm where the Commissioner of Accounts is also a partner. Under VA law, any appeal has to be made to the State Supreme Court...in short the decks are stacked.

My relative who I mentioned above really turned all the work over to his para-legal - it was a small county. I did go to his house once and asked where he got a beautiful antique. He said it was from an estate he settled - he could take what he wanted assuming there wasn't a will. The fees are now set at %5 or less (caveats apply) but Commissioners of Accounts have wide latitude.

The Va. system is designed to reduce the workload of the Court. Commissioners are appointed by the Circuit Court Judge and they maintain a private law practice; they are lawyers. They are not paid by the Court and they must provide their own staff. Thus the all important fee - each Court can set its own fee, but there are now guidelines so I guess taking antiques may not be allowed anymore...More on the VA system: http://www.courts.state.va.us/courts/ci ... /home.html
Last edited by Mr. Rumples on Sun May 16, 2021 6:27 pm, edited 1 time in total.
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JoeRetire
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Re: Worth fighting a will in Virginia?

Post by JoeRetire »

mkawasaki wrote: Sun May 16, 2021 10:50 am My fiance has a very unfortunate situation. Her father just died and now we're learning that the Will was significantly changed 5 years ago

* The father admitted a few years ago, "I didn't understand that was the change and will fix it."
This is confusing.

Her father changed the will 5 years ago, and you just learned about that change.
Yet he also admitted a few years ago that he didn't understand it was changed?

Something doesn't add up here. When he "admitted" it, you didn't know what he was admitting to?

Sorry to say, your fiancé needs to find a way to put this behind her. There's nothing to be gained by letting this bother her. You have no way to prove that 5 years ago "when he began showing signs of dementia" he wasn't competent to sign a new will. And being married for 2 years is a pretty good reason to leave everything to your spouse.

Just help her get past this.
Last edited by JoeRetire on Sun May 16, 2021 6:38 pm, edited 1 time in total.
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Re: Worth fighting a will in Virginia?

Post by adam1712 »

I'd probably either forget it or meet with a lawyer with the goal of getting the family to respect the terms if your father died second. You have a little leverage if they are worried about you challenging it, and they might think giving your fiancé 1/9 isn't that bad of a deal to avoid a legal challenge.
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