Legal Question in Wills and Trusts in Florida
Mother Changes Will During Last 3 Months of Cancer
Terminally ill mother (cancer) changes will during last 3 months of life leaving everything to son with whom she is residing. (Previous will had left equitable division of estate to all of her four children.) Same son is convicted felon and was named as personal representative; daughter named as backup representative. Will has appearances of home made or downloaded from Internet. Some blanks and cross-outs on will. Improperly notarized (notary put a date a whole year before will was written) and improperly witnessed (technicalities). Numerous other discrepancies in will. Although the mother in question did call siblings and state she
was doing this, is it likely that judgment would be in their favor because of her condition (in the end, the cancer was found to
have gone to her brain) and the possibility of undue influence?
We are trying to get final will invalidated and revert to previous will. Would this be better handled by flat fee, hourly or contingency? Thank you.
2 Answers from Attorneys
Re: Mother Changes Will During Last 3 Months of Cancer
I doubt any attorney would take this on a contingency. Hourly fee would depend upon work involved and extent of estate. Good luck.
Re: Mother Changes Will During Last 3 Months of Cancer
The last will may indeed be invalid due to one or several of the "technical" factors you mentioned. I would have to look at the document to come to a definite conclusion.
It takes more than the effects of a fatal disease to prove lack of testamentary capacity. The legal definition is quite precise and narrower than that of mental incapacity. Depending on your mother's condition at the time of execution of the last will, she may or may not have had the legal capacity to make a will.
There is a possibility of undue influence depending on the evidence that may exist in addition to what you have already layed out.
As for the preferred type of fees, it depends on many factors. Talk to several probate litigation attorneys and ask to get a proposed retainer agreement or some kind of estimate. You are looking at starting litigation (at least on the last two theories). Making your case may involve quite a few billable hours... Good luck.
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