Worth fighting a will in Virginia?

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neverpanic
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Re: Worth fighting a will in Virginia?

Post by neverpanic »

namajones wrote: Sun May 16, 2021 1:10 pm 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.
namajones wrote: Sun May 16, 2021 1:13 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.
What is the physical location of your last will? Do each of your heirs-at-law know where it is? Do each of them know the date/year of the most recent update? You already know that clause is meaningless.

Scenario: Heir 1 shows up with a 10-year-old document announcing, "I have in my hands the last will and testament of John P. Jones, Jr. and 96% of his estate has been left to me," but the 4 other would-be heirs are certain that John Jones' will was updated within the past 5 years, calling for a more equitable division of assets. In fact, another of the heirs was present when it was signed and notarized 5 years ago, but they do not have a copy of the newer will.

In such a scenario, should the other heirs just let it go?

--------------

OP, encourage your wife to move on. She is well within her rights to challenge the will, but if everything you have stated is relatively accurate, she will most likely lose. And if it's already difficult for her, losing a virtually unwinnable legal battle will probably make things worse.

I empathize for her situation, but her relationship with her father was never about his money while he was alive and it doesn't need to be now that he's gone. I wish her the best and I wish the best for you as well as you help her to become informed about the best ways to navigate this difficult situation.
I am not a financial professional or guru. I'm a schmuck who got lucky 10 times. Such is the life of the trader.
Mordoch
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Re: Worth fighting a will in Virginia?

Post by Mordoch »

adam1712 wrote: Sun May 16, 2021 6:36 pm 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.
You either misread what the OP said about the will, or are wildly mistaken about what the law about a situation like this says given the evidence so far

That one 1/9th ONLY applied if the stepmom died first.

In this scenario the OP and his fiancée appear to have zero actual firm evidence the father was not 100% competent to change his will when he did so five years ago. (Merely having dementia two years later is definitely not going to be good enough, nor is a few observations they are making about the father now after his death.) As noted the standard is they really need actual proof in the other direction to effectively challenge it. Given the father was married to the stepmom for 25 years, there is nothing about the decision by the father which is going to especially raise the eyebrows of the court about the decision either.

The reality is the OP and his fiancée appear to have a incredibly weak case legally given the evidence so far (assuming the relevant changes in the will were 5 years ago part holds up) and its extremely unlikely the other family members would settle given this fact. In fact the case as presented so far appears so weak they might have trouble finding a lawyer willing to even take the case, and a lawyer who did would presumably be doing it for the wrong reasons of collecting fees rather than thinking they could possible win. The idea they could get 1/9th of the money, or really any money at all fighting this, is extremely improbable unless new evidence shows up that has not been presented yet, although the OP certainly should get a copy of the will and note when it was dated. (With a recent date meaning it probably is worth pursuing if the key changes had in fact been made 5 years ago if the fiancée and the OP don't already know this for sure, although it appears the change was made awhile ago.)
Jablean
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Re: Worth fighting a will in Virginia?

Post by Jablean »

TSR wrote: Sun May 16, 2021 12:53 pm 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.
And since one son (step brother) is now stepmom's POA then playing nice with her extended family is in order too. In the best situation stepmom's will would provide for your fiance.
OP - you say that her dad never met some of the step kid's? How does she know? Did they never visit their mother in 25 years? If step brother already says that he thinks your fiancé will fight the will why does he think that?
tibbitts
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Re: Worth fighting a will in Virginia?

Post by tibbitts »

Jablean wrote: Sun May 16, 2021 10:36 pm And since one son (step brother) is now stepmom's POA then playing nice with her extended family is in order too. In the best situation stepmom's will would provide for your fiance.
OP - you say that her dad never met some of the step kid's? How does she know? Did they never visit their mother in 25 years? If step brother already says that he thinks your fiancé will fight the will why does he think that?
It sounds like the relationship with that entire family is already over and there probably won't be any communication happening in the future.
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celia
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Re: Worth fighting a will in Virginia?

Post by celia »

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?
...

* The stepbrother stated "I will send you the latest will as required because you are an Heir at Law."
How can you possibly object to something you haven’t even seen? The document should stand on its own regardless if the father understood what he was signing (or not), which is a separate issue.

For all you know, there might be something personally valuable to you, like childhood photos that could be worth more than money (to you).
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TomatoTomahto
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Re: Worth fighting a will in Virginia?

Post by TomatoTomahto »

If I were married to a woman for 25 years, had $1M - $2M in assets, and were the first to die, my will would leave everything to her. At last count, I’m compos mentis.

I would have written a nice letter to my children explaining that my assets were not sufficient to have a primary bequest to anyone else, but that I hoped that they would be remembered in my widow’s subsequent will.
I get the FI part but not the RE part of FIRE.
dekecarver
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Re: Worth fighting a will in Virginia?

Post by dekecarver »

Don't do any guessing or make assumptions just find an attorney who specializes in writing and litigating Wills and Estates and cut through the BS. It will be worth your time and money b/c you will at least have a legal opinion and potential course of action. Ultimately the answer could be yes and/or no and your course of action could be cost based etc.. You won't know until you talk to a competent lawyer. This is based on my experience.
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RickBoglehead
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Re: Worth fighting a will in Virginia?

Post by RickBoglehead »

TomatoTomahto wrote: Mon May 17, 2021 5:25 am At last count, I’m compos mentis.
But if you weren't, wouldn't you likely say you were? :shock:
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TomatoTomahto
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Re: Worth fighting a will in Virginia?

Post by TomatoTomahto »

RickBoglehead wrote: Mon May 17, 2021 6:39 am
TomatoTomahto wrote: Mon May 17, 2021 5:25 am At last count, I’m compos mentis.
But if you weren't, wouldn't you likely say you were? :shock:
Actually, you can go down a rabbit hole thinking about this, but in a variant of "imposter syndrome," I'm more likely to claim dementia in myself that doesn't exist . . . yet.

All kidding aside, I think that an estate of a million or two (estimated) doesn't go as far as it perhaps once did. If I were in that boat, and were facing (five years ago, mind you) potential healthcare and other expenses for my loving wife of (then) 20 years, I don't think I would have hesitated to make her the sole and primary beneficiary in my will. I don't think it reflects dementia or anything untoward, just a recognition that expenses in one's later years are unknowable in advance and can be extreme.
I get the FI part but not the RE part of FIRE.
michaeljc70
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Re: Worth fighting a will in Virginia?

Post by michaeljc70 »

I think the chances of recovery in court are small given the circumstances that have been laid out. However, the step children seemed to know that this might be challenged. There could be a scenario where the family, if confronted by a challenge from an estate lawyer, will settle quickly for some sum, probably small.

In situations where there is a remarriage I think gifting while living (if you can afford it) is a smart way to ensure your children get something. I actually think it is a smart way even if there isn't much chance for issues. My parents gift the kids money ever year and we appreciate it. We don't have to wait until we are very old to get all of our inheritance and get to enjoy it spread out while our parents are alive.
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8foot7
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Re: Worth fighting a will in Virginia?

Post by 8foot7 »

michaeljc70 wrote: Mon May 17, 2021 7:28 am There could be a scenario where the family, if confronted by a challenge from an estate lawyer, will settle quickly for some sum, probably small.
You might well be right. But man, I would hate to think my oldest son would threaten to sue my current wife of 25 years because I left my resources to her in a period of her declining health. My goodness, what a way to dishonor someone's memory.

OP, would Dad have wanted the threat of a legal battle to be used to extort money from his wife of 25 years?
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Re: Worth fighting a will in Virginia?

Post by michaeljc70 »

8foot7 wrote: Mon May 17, 2021 7:54 am
michaeljc70 wrote: Mon May 17, 2021 7:28 am There could be a scenario where the family, if confronted by a challenge from an estate lawyer, will settle quickly for some sum, probably small.
You might well be right. But man, I would hate to think my oldest son would threaten to sue my current wife of 25 years because I left my resources to her in a period of her declining health. My goodness, what a way to dishonor someone's memory.

OP, would Dad have wanted the threat of a legal battle to be used to extort money from his wife of 25 years?
You'd be threatening to sue the estate, not the step mother. I see your point, but it seems pretty clear most of the money is going to the step kids.

I didn't see this being mentioned, but when the father said "oh, I didn't know the change cut you out...I'll fix that" he was just trying to placate the daughter. I'm not saying the father didn't want her to get anything, but he was married for 25 years to what seems like an overbearing wife who may have insisted and that won out over a daughter that lived thousands of miles away.
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galawdawg
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Re: Worth fighting a will in Virginia?

Post by galawdawg »

michaeljc70 wrote: Mon May 17, 2021 8:05 am You'd be threatening to sue the estate, not the step mother. I see your point, but it seems pretty clear most of the money is going to the step kids.
Not according to what OP said:
mkawasaki wrote: Sun May 16, 2021 10:50 am * New will has all assets going to the wife/stepmom if the father died first...
What happens when the stepmother dies? It entirely depends upon her will, about which we know nothing.
michaeljc70
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Re: Worth fighting a will in Virginia?

Post by michaeljc70 »

galawdawg wrote: Mon May 17, 2021 8:11 am
michaeljc70 wrote: Mon May 17, 2021 8:05 am You'd be threatening to sue the estate, not the step mother. I see your point, but it seems pretty clear most of the money is going to the step kids.
Not according to what OP said:
mkawasaki wrote: Sun May 16, 2021 10:50 am * New will has all assets going to the wife/stepmom if the father died first...
What happens when the stepmother dies? It entirely depends upon her will, about which we know nothing.
Her son according to OP: "suddenly within one week of the fathers death" ... "Mom isn't competent to manage these affairs so she has signed over power of attorney and asked me to be Executor." So, the kid(s) are managing the money already. I suppose it is possible the mother is leaving her money to ducks anonymous....
adam1712
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Re: Worth fighting a will in Virginia?

Post by adam1712 »

Mordoch wrote: Sun May 16, 2021 8:13 pm
adam1712 wrote: Sun May 16, 2021 6:36 pm 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.
You either misread what the OP said about the will, or are wildly mistaken about what the law about a situation like this says given the evidence so far

That one 1/9th ONLY applied if the stepmom died first.

In this scenario the OP and his fiancée appear to have zero actual firm evidence the father was not 100% competent to change his will when he did so five years ago. (Merely having dementia two years later is definitely not going to be good enough, nor is a few observations they are making about the father now after his death.) As noted the standard is they really need actual proof in the other direction to effectively challenge it. Given the father was married to the stepmom for 25 years, there is nothing about the decision by the father which is going to especially raise the eyebrows of the court about the decision either.

The reality is the OP and his fiancée appear to have a incredibly weak case legally given the evidence so far (assuming the relevant changes in the will were 5 years ago part holds up) and its extremely unlikely the other family members would settle given this fact. In fact the case as presented so far appears so weak they might have trouble finding a lawyer willing to even take the case, and a lawyer who did would presumably be doing it for the wrong reasons of collecting fees rather than thinking they could possible win. The idea they could get 1/9th of the money, or really any money at all fighting this, is extremely improbable unless new evidence shows up that has not been presented yet, although the OP certainly should get a copy of the will and note when it was dated. (With a recent date meaning it probably is worth pursuing if the key changes had in fact been made 5 years ago if the fiancée and the OP don't already know this for sure, although it appears the change was made awhile ago.)
Sure, it could very well be a legal hail mary. And I should have been more clear, a court ruling is more likely to be all or none for accepting a given will and chances are probably slim.

The best hope is for a settlement. There's a reason they lawyered up and the stepbrother took the tone he did. I'm sure you could find a lawyer willing to obtain the will and draft a couple letters/have phone calls with the family's lawyer. It feels like it might not hurt to have some discussions through legal channels to feel things out. Considering you're dealing with multiple family members who may have varying views, I wouldn't be that surprised if they came to the agreement that the right thing to do is give 1/9 to the OP's fiancé either now or at the stepmother's death. And just the discussions might make it more likely the stepmother's will would include the fiancé. Or maybe you could determine through a lawyer that it already does as it wouldn't be surprising for a husband and wife to have matching wills.

But it's certainly reasonable to just forget it, especially if something like 1/9 would feel like a slap in the face as I think it's important to consider what a realistic positive outcome might be. And even that might be low probability after discussing with a lawyer.
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Re: Worth fighting a will in Virginia?

Post by humblecoder »

Sorry for your fiancee's loss.

I am not a lawyer. As others have mentioned, it sounds like she does not have much of a case.

Unfortunately, with multiple marriages, blended families, etc this situation is not uncommon. It is less about the money and more about the fact that your fiancee was "left out" of the will, so there may be some lingering doubts in her mind about his feelings towards her. Compound that with the fact that he is gone so she cannot get any positive affirmation from him.

I would focus on the items which show that he did have love for her:

1. He stayed with her to help her with child care when she needed it. This sounds like it wasn't a trivial thing since I assume that she was in CA and he was in VA. So he had to move 3000 miles away from his family to offer this assistance.

2. He did intend to leave her 1/9th of his estate should he pass second. And it sounds like not leaving her anything if he died first was an oversight, not an intentional slight.

3, It sounds like they were otherwise very close.

So yes, she didn't get anything from the estate, but she should not view it as a reflection of their relationship. She needs to separate the two.

Also, consider the stepmother's point of view. I would guess that your stepmother has need for the money from his estate to support her. They were together for 25 years so it is clear that they loved each other and your fiancee's father certainly wanted to make sure that she was taken care of, which is perfectly reasonable. It wasn't like this was a "gold digger" situation. The stepbrother might be lawyering up because he knows that his mother needs the money for her care (you mention that she has signs of dementia) so they don't want a protracted legal battle to keep that money hostage when she might have an immediate need for it. I know it is easy to paint the stepbrother as being greedy and looking out for his inheritance, but you need to see it from his point of view. He is a loving child, too, just like your fiancee, so he might be just doing what he thinks is right for his parent.

The best course of action is to come to peace with the situation with the realization that the will isn't a reflection of his love for your fiancee. Tell the stepbrother that she expresses her condolences to his mother on the loss of her long time husband, and that she respects her father's wishes that his wife of 25 years be taken care of through his estate.
dbr
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Re: Worth fighting a will in Virginia?

Post by dbr »

humblecoder wrote: Mon May 17, 2021 9:48 am Sorry for your fiancee's loss.

I am not a lawyer. As others have mentioned, it sounds like she does not have much of a case.

Unfortunately, with multiple marriages, blended families, etc this situation is not uncommon. It is less about the money and more about the fact that your fiancee was "left out" of the will, so there may be some lingering doubts in her mind about his feelings towards her. Compound that with the fact that he is gone so she cannot get any positive affirmation from him.

I would focus on the items which show that he did have love for her:

1. He stayed with her to help her with child care when she needed it. This sounds like it wasn't a trivial thing since I assume that she was in CA and he was in VA. So he had to move 3000 miles away from his family to offer this assistance.

2. He did intend to leave her 1/9th of his estate should he pass second. And it sounds like not leaving her anything if he died first was an oversight, not an intentional slight.

3, It sounds like they were otherwise very close.

So yes, she didn't get anything from the estate, but she should not view it as a reflection of their relationship. She needs to separate the two.

Also, consider the stepmother's point of view. I would guess that your stepmother has need for the money from his estate to support her. They were together for 25 years so it is clear that they loved each other and your fiancee's father certainly wanted to make sure that she was taken care of, which is perfectly reasonable. It wasn't like this was a "gold digger" situation. The stepbrother might be lawyering up because he knows that his mother needs the money for her care (you mention that she has signs of dementia) so they don't want a protracted legal battle to keep that money hostage when she might have an immediate need for it. I know it is easy to paint the stepbrother as being greedy and looking out for his inheritance, but you need to see it from his point of view. He is a loving child, too, just like your fiancee, so he might be just doing what he thinks is right for his parent.

The best course of action is to come to peace with the situation with the realization that the will isn't a reflection of his love for your fiancee. Tell the stepbrother that she expresses her condolences to his mother on the loss of her long time husband, and that she respects her father's wishes that his wife of 25 years be taken care of through his estate.
I think all of the above is well said.

Note that if he is second to pass the estate is divided equally among nine children and step children of long standing. That is not irrational or unfair on the face of it. I agree the failure to directly allow that same 1/9th to be paid over on the father dying first may be an oversight, but the father probably would not have stayed with the full 1/3 in any case. The justification for taking care of the second wife and her children being family is certainly credible after 25 years. It is still true that the second wife can leave assets in her will for the first daughter. No one has said she won't although contesting the will could fix that in the wrong way.

It is a fact that the fiance/first daughter now finds herself a member of a family of a step mother and eight additional "siblings" and that is a thing that happens. The 25 years of second marriage would seem to be a clincher that nothing untoward is happening here. There would have to be clear and unassailable evidence of mental incapacity at the the time of the second will to undo this, and "start of (possible) dementia" is not that.
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Re: Worth fighting a will in Virginia?

Post by michaeljc70 »

dbr wrote: Mon May 17, 2021 9:58 am
humblecoder wrote: Mon May 17, 2021 9:48 am Sorry for your fiancee's loss.

I am not a lawyer. As others have mentioned, it sounds like she does not have much of a case.

Unfortunately, with multiple marriages, blended families, etc this situation is not uncommon. It is less about the money and more about the fact that your fiancee was "left out" of the will, so there may be some lingering doubts in her mind about his feelings towards her. Compound that with the fact that he is gone so she cannot get any positive affirmation from him.

I would focus on the items which show that he did have love for her:

1. He stayed with her to help her with child care when she needed it. This sounds like it wasn't a trivial thing since I assume that she was in CA and he was in VA. So he had to move 3000 miles away from his family to offer this assistance.

2. He did intend to leave her 1/9th of his estate should he pass second. And it sounds like not leaving her anything if he died first was an oversight, not an intentional slight.

3, It sounds like they were otherwise very close.

So yes, she didn't get anything from the estate, but she should not view it as a reflection of their relationship. She needs to separate the two.

Also, consider the stepmother's point of view. I would guess that your stepmother has need for the money from his estate to support her. They were together for 25 years so it is clear that they loved each other and your fiancee's father certainly wanted to make sure that she was taken care of, which is perfectly reasonable. It wasn't like this was a "gold digger" situation. The stepbrother might be lawyering up because he knows that his mother needs the money for her care (you mention that she has signs of dementia) so they don't want a protracted legal battle to keep that money hostage when she might have an immediate need for it. I know it is easy to paint the stepbrother as being greedy and looking out for his inheritance, but you need to see it from his point of view. He is a loving child, too, just like your fiancee, so he might be just doing what he thinks is right for his parent.

The best course of action is to come to peace with the situation with the realization that the will isn't a reflection of his love for your fiancee. Tell the stepbrother that she expresses her condolences to his mother on the loss of her long time husband, and that she respects her father's wishes that his wife of 25 years be taken care of through his estate.
I think all of the above is well said.

Note that if he is second to pass the estate is divided equally among nine children and step children of long standing. That is not irrational or unfair on the face of it. I agree the failure to directly allow that same 1/9th to be paid over on the father dying first may be an oversight, but the father probably would not have stayed with the full 1/3 in any case. The justification for taking care of the second wife and her children being family is certainly credible after 25 years. It is still true that the second wife can leave assets in her will for the first daughter. No one has said she won't although contesting the will could fix that in the wrong way.

It is a fact that the fiance/first daughter now finds herself a member of a family of a step mother and eight additional "siblings" and that is a thing that happens. The 25 years of second marriage would seem to be a clincher that nothing untoward is happening here. There would have to be clear and unassailable evidence of mental incapacity at the the time of the second will to undo this, and "start of (possible) dementia" is not that.
The OP said the father never met some of the step children. I find it odd to leave money to people you never met.
dbr
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Re: Worth fighting a will in Virginia?

Post by dbr »

michaeljc70 wrote: Mon May 17, 2021 10:01 am
dbr wrote: Mon May 17, 2021 9:58 am
humblecoder wrote: Mon May 17, 2021 9:48 am Sorry for your fiancee's loss.

I am not a lawyer. As others have mentioned, it sounds like she does not have much of a case.

Unfortunately, with multiple marriages, blended families, etc this situation is not uncommon. It is less about the money and more about the fact that your fiancee was "left out" of the will, so there may be some lingering doubts in her mind about his feelings towards her. Compound that with the fact that he is gone so she cannot get any positive affirmation from him.

I would focus on the items which show that he did have love for her:

1. He stayed with her to help her with child care when she needed it. This sounds like it wasn't a trivial thing since I assume that she was in CA and he was in VA. So he had to move 3000 miles away from his family to offer this assistance.

2. He did intend to leave her 1/9th of his estate should he pass second. And it sounds like not leaving her anything if he died first was an oversight, not an intentional slight.

3, It sounds like they were otherwise very close.

So yes, she didn't get anything from the estate, but she should not view it as a reflection of their relationship. She needs to separate the two.

Also, consider the stepmother's point of view. I would guess that your stepmother has need for the money from his estate to support her. They were together for 25 years so it is clear that they loved each other and your fiancee's father certainly wanted to make sure that she was taken care of, which is perfectly reasonable. It wasn't like this was a "gold digger" situation. The stepbrother might be lawyering up because he knows that his mother needs the money for her care (you mention that she has signs of dementia) so they don't want a protracted legal battle to keep that money hostage when she might have an immediate need for it. I know it is easy to paint the stepbrother as being greedy and looking out for his inheritance, but you need to see it from his point of view. He is a loving child, too, just like your fiancee, so he might be just doing what he thinks is right for his parent.

The best course of action is to come to peace with the situation with the realization that the will isn't a reflection of his love for your fiancee. Tell the stepbrother that she expresses her condolences to his mother on the loss of her long time husband, and that she respects her father's wishes that his wife of 25 years be taken care of through his estate.
I think all of the above is well said.

Note that if he is second to pass the estate is divided equally among nine children and step children of long standing. That is not irrational or unfair on the face of it. I agree the failure to directly allow that same 1/9th to be paid over on the father dying first may be an oversight, but the father probably would not have stayed with the full 1/3 in any case. The justification for taking care of the second wife and her children being family is certainly credible after 25 years. It is still true that the second wife can leave assets in her will for the first daughter. No one has said she won't although contesting the will could fix that in the wrong way.

It is a fact that the fiance/first daughter now finds herself a member of a family of a step mother and eight additional "siblings" and that is a thing that happens. The 25 years of second marriage would seem to be a clincher that nothing untoward is happening here. There would have to be clear and unassailable evidence of mental incapacity at the the time of the second will to undo this, and "start of (possible) dementia" is not that.
The OP said the father never met some of the step children. I find it odd to leave money to people you never met.
I guess it could be the real daughter has been taken advantage of by the step-family, but proving that to an acceptable legal standard may be impossible. The father could have short circuited this by establishing a trust for the first daughter or by having given her the assets outright.

Maybe a lesson is that a person should always consider what might transpire when they are no longer able to manage their affairs.
humblecoder
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Re: Worth fighting a will in Virginia?

Post by humblecoder »

dbr wrote: Mon May 17, 2021 10:10 am Maybe a lesson is that a person should always consider what might transpire when they are no longer able to manage their affairs.
I would be curious If the father's will was a DIY will. I know when we had our wills done a few years ago with an attorney, she did walk us through various scenarios and options that we may not have considered. I would have to think that an attorney would have pointed out to the father that if he passed first that his biological daughter might not get anything.
dbr
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Re: Worth fighting a will in Virginia?

Post by dbr »

humblecoder wrote: Mon May 17, 2021 10:45 am
dbr wrote: Mon May 17, 2021 10:10 am Maybe a lesson is that a person should always consider what might transpire when they are no longer able to manage their affairs.
I would be curious If the father's will was a DIY will. I know when we had our wills done a few years ago with an attorney, she did walk us through various scenarios and options that we may not have considered. I would have to think that an attorney would have pointed out to the father that if he passed first that his biological daughter might not get anything.
I wonder what kind of warning an attorney might be willing to give that his second wife would manipulate him into changing his will against his actual wishes, the presumptive allegation here. I am not sure this is just a theoretical question.
ZWorkLess
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Re: Worth fighting a will in Virginia?

Post by ZWorkLess »

My 2c . . . No, it's not.

My mom was a resident of FFX Co when her dementia developed and up until I moved her in with me in another state. She had been an attorney, had a great estate lawyer, a CPA, and a long time dear friend (another lawyer) all involved in her estate plan who all worked with me and my brother to make decisions re: how to handle her estate and understand the legalities during her lifetime.

1a) My clear understanding was that it was/is extremely hard to determine someone doesn't have the legal capacity to make their own decisions and that even mid-stage Alzheimer's wasn't enough to remove that capacity legally in any clear way. She would have had to be VERY far gone to have successfully removed her legal ability to make her own decisions.

I gained that understanding early on from the various attorneys/etc (including my own personal one that has/had nothing to do with Mom's fleet of advisors), and I kept that at the fore of my mind when struggling to help Mom during early stages. I.e., I knew she was unsafe to drive, but I had to tread lightly and use medical professionals to justify reducing her driving. (She never did lose her license, even though I took away the car keys eventually.) And I knew she was being taken advantage of by numerous charities, but again, we treaded lightly and coached/cajoled instead of argued. I can count on one hand the times in 4 years of care giving when I actually "argued" with my mom -- and they were situations of immediate, stark, life and death consequences. Actually, only two occasions come to mind. I knew that if I alienated Mom, not only would it be hard on both of us, but it would endanger her because if she didn't trust me (and my sibling), she'd be extremely vulnerable to exploitation or worse. So, I understood that my ability to protect her relied on her trusting me.

Anyway, bottom line is that with dementia, at least in VA (and I think most/all states), family is really limited in how they can protect the person, and are essentially reliant on subtly taking control (intercepting mail, screening calls, reorganizing finances, disabling a vehicle).

If a trusted loved one or advisor doesn't do these things, the patient(s) will be destitute in short order, no matter the intentions of the family, IMHO. Clearly, it is abusive/wrong to use those powers to exploit anyone or to harm them by reducing contact with loving family members, but anyone in the USA who has taken care of a loved one with dementia (especially one with financial resources) will understand that "white lies" and "lies of omission" are an imperative (and regrettable) part of successfully caring for someone with dementia.

So, essentially, I'm telling you all this to help you understand that although what happened with your fiancé's dad was possibly wrong/immoral it was very likely completely legal. And, at this late date and with the "patient" being unavailable for examination/evaluation, it's pretty much impossible to even imagine you being able to prove that a 5 year old will was invalid.

1b) My own mom went STRAIGHT to the best estate attorney she knew when she began her diagnosis process. I.e, when she first knew she had dementia. She went and created an entirely updated estate plan. BECAUSE she wanted to do things differently and to tweak things before she truly lost capacity to make decisions. In prior years, she hadn't thought her modest (about the size of your fiancé's dad) estate was worthy of the $$$$ estate attorney, but once she suspected what she was facing, she knew to get the legalities dialed in. I think it makes perfect sense. People update their documents when they know they are at risk of dying soon. That's what we do. Mom's changes weren't dramatically changing who got what, but were more strategic/organizational to simplify her estate and clarify/refine who made decisions for her during her lifetime, etc. She didn't even consult her heirs at that time; just worked with the professionals to design her plan. And that was "in the early stages" of dementia. And she was 100% competent to do that, and according to those advisors, would have been still legally competent to change again much, much later on.

2) I also clearly understood that any legal fight would have been a 6 figure fight.

3) I agree on spending the money on therapy vs legal fees. WAY better return on your investment.

4) Especially since your dad's wife (of 25 years) also requires care in am expensive facility, then I would do my best to not resent her inheritance. I wouldn't think about the possibilities of where the money goes when she passes, because frankly, if their estate had only been in the 2-3 million range and they've both been in an expensive facility and receiving care for years, it's highly likely that estate is much smaller already and will be zero in not too many more years. Money disappears very FAST when dealing with dementia, IME.

If this was MY spouse, I'd be trying to guide them to see that "of course Dad left his money to his wife . . . she was his partner . . . and he was a loving, responsible person and wanted to continue to care for her even after his death. . ." When the "left over money / 2nd to die" issue arises, I'd say stuff like, "she'll probably live a very long time, and there's likely not much if any money left already . . ."

5) You and your fiancé really have no idea how much of Dad's money was actually step-mom's money. My spouse has earned 95% of all earned income in our marriage, but the large majority of our "wealth" accumulation is due to me, not to mention the kids I raised and educated. My spouses's family has no idea, whatsoever, of the financial contributions that have come through me -- lots of strategic decisions, business decisions, family budget/finance decisions, real estate investments, inheritances, etc. I could totally imagine anyone outside our very closest family members thinking that all "our" money was actually "his" money. In reality, legally, more than half would go to me if we divorced right now (inheritances) and that's with me having merged most inherited money with our family finances instead of keeping it separate to protect it from my spouse. So, again, I'd encourage you to not assume that "dad's estate" was really Dad's money. Think of it as "their money" and feel good that it's being used to care for Dad's spouse.

If Dad and MIL had divorced, presumably, she would have gotten half at the very least, and possibly more.

Besides, when you've been married for 25 years, in a decent marriage, you care about your spouse as much as you care for yourself, and would DEFINITELY want any/all needed money to go for their care knowing they were already vulnerable and in no position to earn/get more money themselves. And <2M for one person is minimal IMHO when considering the expenses of long term institutional care.

6) Understand that if your fiancé moves forward with a legal fight, she WILL need therapy as well, because it will be utterly brutal for her and very, very hard on her (and you).

My dad died due to medical error, and we did sue, and eventually settled. The couple years of having to answer questions aimed at putting a dollar value on his life and a dollar value on our relationships was brutal. Lawsuits require dozens to hundreds of hours thinking about and writing up answers to these sorts of questions. Consider the pain it will cause your fiancé to address them, and if you love her, help her access therapy, not attorneys. Here are some questions they WILL ask:

a) How many days/weeks a year did you spend with your dad in recent years? Why? Why not more? Where? When? Prove it.
b) How about holidays?
c) How often did you speak by phone?
d) Why didn't you fight to spend more time with him?
e) Why hire a lawyer now instead of when you were being restrained from seeing/speaking with him?
f) What steps did you take to protect him from the isolation/exploitation you claim was occurring?

and on and on, ad nauseam. And, when they find a tender or painful spot, they will push harder and ask more questions. Even if they had a wonderful relationship, the process WILL cause pain and WILL find tender spots.

I do NOT want answers to any of those questions. I am just urging you to consider what pain the legal process can inflict on your fiancé. It's a really, really ugly process.

My advice to friends, having been through a "successful" lawsuit process over a lost loved one is to NOT pursue legal action unless you really need the money to take care of an impacted loved one (ie., family member survived the malpractice and needs care, or a minor child left, etc.). I usually suggest filing a board complaint to "punish" them, as that's a once and done form in most cases. I would use the same principles here, and so would avoid legal action.
michaeljc70
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Re: Worth fighting a will in Virginia?

Post by michaeljc70 »

dbr wrote: Mon May 17, 2021 10:10 am
michaeljc70 wrote: Mon May 17, 2021 10:01 am
dbr wrote: Mon May 17, 2021 9:58 am
humblecoder wrote: Mon May 17, 2021 9:48 am Sorry for your fiancee's loss.

I am not a lawyer. As others have mentioned, it sounds like she does not have much of a case.

Unfortunately, with multiple marriages, blended families, etc this situation is not uncommon. It is less about the money and more about the fact that your fiancee was "left out" of the will, so there may be some lingering doubts in her mind about his feelings towards her. Compound that with the fact that he is gone so she cannot get any positive affirmation from him.

I would focus on the items which show that he did have love for her:

1. He stayed with her to help her with child care when she needed it. This sounds like it wasn't a trivial thing since I assume that she was in CA and he was in VA. So he had to move 3000 miles away from his family to offer this assistance.

2. He did intend to leave her 1/9th of his estate should he pass second. And it sounds like not leaving her anything if he died first was an oversight, not an intentional slight.

3, It sounds like they were otherwise very close.

So yes, she didn't get anything from the estate, but she should not view it as a reflection of their relationship. She needs to separate the two.

Also, consider the stepmother's point of view. I would guess that your stepmother has need for the money from his estate to support her. They were together for 25 years so it is clear that they loved each other and your fiancee's father certainly wanted to make sure that she was taken care of, which is perfectly reasonable. It wasn't like this was a "gold digger" situation. The stepbrother might be lawyering up because he knows that his mother needs the money for her care (you mention that she has signs of dementia) so they don't want a protracted legal battle to keep that money hostage when she might have an immediate need for it. I know it is easy to paint the stepbrother as being greedy and looking out for his inheritance, but you need to see it from his point of view. He is a loving child, too, just like your fiancee, so he might be just doing what he thinks is right for his parent.

The best course of action is to come to peace with the situation with the realization that the will isn't a reflection of his love for your fiancee. Tell the stepbrother that she expresses her condolences to his mother on the loss of her long time husband, and that she respects her father's wishes that his wife of 25 years be taken care of through his estate.
I think all of the above is well said.

Note that if he is second to pass the estate is divided equally among nine children and step children of long standing. That is not irrational or unfair on the face of it. I agree the failure to directly allow that same 1/9th to be paid over on the father dying first may be an oversight, but the father probably would not have stayed with the full 1/3 in any case. The justification for taking care of the second wife and her children being family is certainly credible after 25 years. It is still true that the second wife can leave assets in her will for the first daughter. No one has said she won't although contesting the will could fix that in the wrong way.

It is a fact that the fiance/first daughter now finds herself a member of a family of a step mother and eight additional "siblings" and that is a thing that happens. The 25 years of second marriage would seem to be a clincher that nothing untoward is happening here. There would have to be clear and unassailable evidence of mental incapacity at the the time of the second will to undo this, and "start of (possible) dementia" is not that.
The OP said the father never met some of the step children. I find it odd to leave money to people you never met.
I guess it could be the real daughter has been taken advantage of by the step-family, but proving that to an acceptable legal standard may be impossible. The father could have short circuited this by establishing a trust for the first daughter or by having given her the assets outright.

Maybe a lesson is that a person should always consider what might transpire when they are no longer able to manage their affairs.
Absolutely! You should do your estate planning with the expectation that money will bring out the worst in people. You should plan on getting dementia and not being able to manage your financial affairs. This includes tactics to subvert changes to your estate plan by 3rd parties when your faculties are gone. We've all read stories of how Dad's nurse/caretaker got a big inheritance and the kids (and Dad since he wasn't of sound mind or was easily influenced) didn't see it coming.
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alpenglow
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Re: Worth fighting a will in Virginia?

Post by alpenglow »

Prahasaurus wrote: Sun May 16, 2021 12:35 pm 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.
This is great advice. I've seen it first hand with certain family members where it has been become a highly divisive and damaging decade long obsession.
Silverado
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Re: Worth fighting a will in Virginia?

Post by Silverado »

Thanks to all the posters here giving a wonderful breadth of comments. Lots of good things to think about since I am, just like a poster above, a horrible procrastinator on this subject. Not because I don’t want to face my mortality, but more I just get frustrated with thinking about having to wade through a bunch of legal terms.

OP, I’d say you dig up one of the recent threads on timeshares being left to heirs and have your fiancé be thankful....it could be worse.

Good luck, hope she (and you) get past this quickly.
humblecoder
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Re: Worth fighting a will in Virginia?

Post by humblecoder »

dbr wrote: Mon May 17, 2021 10:50 am
humblecoder wrote: Mon May 17, 2021 10:45 am
dbr wrote: Mon May 17, 2021 10:10 am Maybe a lesson is that a person should always consider what might transpire when they are no longer able to manage their affairs.
I would be curious If the father's will was a DIY will. I know when we had our wills done a few years ago with an attorney, she did walk us through various scenarios and options that we may not have considered. I would have to think that an attorney would have pointed out to the father that if he passed first that his biological daughter might not get anything.
I wonder what kind of warning an attorney might be willing to give that his second wife would manipulate him into changing his will against his actual wishes, the presumptive allegation here. I am not sure this is just a theoretical question.
It is not unreasonable for attorney to say "if you pre-decease your wife and everything is left to her, then your daughter would get nothing unless your wife includes something for her in her will. Is that what you intend?" There is no implication of malice in that question. It is more of making sure that one's wishes match what is going on the piece of paper. A person might not have thought through all of the eventualities and possbilities.

Here is an example:
When we were buying a house, our attorney suggested putting in a contingency regarding having an oil tank on the property. He said that he had several cases where an oil tank was present on a property and it wasn't remediated in the proper way. If that happens, that could be a big expense depending upon whether there was a leak and environmental damage. There was no reason to believe that the seller was not acting in good faith or there was malice or ill intent. It was more of the attorney providing us with advice about an unintended situation that we hadn't thought of. He had experience with literally thousands of real estate transactions so he knew of pretty much every pitfall. However, this was our second house transaction so we didn't know what we didn't know. THAT'S where a good attorney earns his/her money.
Lee_WSP
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Re: Worth fighting a will in Virginia?

Post by Lee_WSP »

mkawasaki wrote: Sun May 16, 2021 12:35 pm
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
I only have two things to add.

Mistake is not grounds for invalidation.

I'm not entirely sure I understand how contesting or receiving any monetary bequest is going to fix or correct anything do I understand how it's ruining her relationship with her dad. A relationship is more than money.
neverpanic
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Re: Worth fighting a will in Virginia?

Post by neverpanic »

Lee_WSP wrote: Mon May 17, 2021 6:00 pm I only have two things to add.

Mistake is not grounds for invalidation.

I'm not entirely sure I understand how contesting or receiving any monetary bequest is going to fix or correct anything nor do I understand how it's ruining her relationship with her dad. A relationship is more than money.
Of course relationships are about more than money, but the feeling of possibly having been disinherited without explanation can definitely impact one's relationship with the departed parent. But also, even that would not be a reasonable cause to pursue a court case.
I am not a financial professional or guru. I'm a schmuck who got lucky 10 times. Such is the life of the trader.
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cchrissyy
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Re: Worth fighting a will in Virginia?

Post by cchrissyy »

lots of good advice here already

i think the only thing to do is get a copy of the will. not to dispute it but just because that is a thing she should see for herself as his only child and as the executer of an older version.
simas
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Re: Worth fighting a will in Virginia?

Post by simas »

mkawasaki wrote: Sun May 16, 2021 12:35 pm
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
I would be honest, I do not understand the bolded part above - how so?? Her father has passed away, that relationship has already happened - no person going forward can do anything at all to change the past that already occurred..

I also dont understand some rather binary things - i.e. she is or isnt an executor right now? not 5 years ago, 3 years ago, etc - right now. What does the will say? Does she actually have it? Who is the executor in that will?

I would get the copy of the will, let grieving happen, and don't mix those two processes at all. Once I have a copy of the will (and be certain that it is what father intended) I would honor it...

and sorry for her loss..
randomguy
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Re: Worth fighting a will in Virginia?

Post by randomguy »

michaeljc70 wrote: Mon May 17, 2021 10:01 am
The OP said the father never met some of the step children. I find it odd to leave money to people you never met.
I think it would be more awkward to give money to the 6 kids you have met and not to the 2 you haven't. I could easily see going split the money between all the surviving kids equally being considered fair. And while this money is "Dad's" I would think after 25 years there could be all sorts of arguing about comingling and the like in at least a moral sense (i.e. what if they used 50k of her cash to redo the house instead of his money for tax reasons?) if not a purely legal one. 25 years is a long time.....

I am not even sure what the right move here for Dad would have been. Set up a trust that supports the wife while she is alive and then passes on to his kids? Seems reasonable but I can see lots of issues with figuring out the distribution strategies that make sense where things like 80k/year of long term care might be reasonable. And who picks if she goes in the 70k place or the 100k place?

It would be good to get a copy of the will and make sure it says what the StepBro says it does but after that you are likely tilting at windmills. Leaving your money to your spouse of 25 years is pretty reasonable.
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