Legal Question in Wills and Trusts in New Jersey
Gift money
My father had a Will drawn up for him in 1995. He revised his Will today (August 17th, 2006) Our lawyer told us that the will can be contested if we do not have the original Will. My father is 90 and has just had cancer surgery. Hospice is here and he won't be with us much longer. However, my brother took original Will that then included him from my fathers apartment and will not give it back. He has stolen $10,000 from my fathers home and that is the reason he is not included in the new will. I have a notarized letter that my father had drawn up saying that he gave my brother that money to ''hold'' until his release my the hospital. My brother has since that date become ''unavailable'' to phone calls, has deleted e-mails and will not answer my older brother or myself. He never contacted my father in the hospital or since the day he got hold of the money. The current Will clearly states that it supercedes all other Wills but my lawyer says my brother can contest the new Will if he is in possession of it. Can you help me please.
3 Answers from Attorneys
Re: Gift money
Your lawyer is wrong. Having possession of the original of your father's old will (which has now been superseded) does not make any difference as far as contesting the new will.
Based on the history you recite, it sounds like there will be problems with your brother when your father dies. Your brother may very well contest the new will, which is his right as an intestate heir. Your lawyer may have been wise to have your father leave your brother a cash legacy in the new will, with a provision that if he contests the will, he will forfiet the cash legacy. This can be an effective way to stop a potential will contest.
Re: Gift money
Your facts are a little confusing. Which original Will does your brother have, the new one or the old one? If the old one, it is immaterial, as the new one should control, subject to his right to contest the new one. He can make several arguments to contest the new one under which he was excluded, and try to have the original of the old one control the estate. This can be costly and time consuming, even if you are successful in defeating his contest. There are many additional considerations (such as the size of your father's estate versus the costs of litigation, getting back the money you father gave your brother to hold, etc.) that must be considered before any suggestion or recommendation can be made. I would need more information to better answer your question. This is a response to an Internet question and the reply is not to be considered as legal advice or as creating an attorney-client relationship.
Re: Gift money #2
This supplements my prior response. If your father is competent and can do it (you might want to get a letter from his current doctor on this, written after he examines your father), I would suggest having a new Will prepared, which could spell out the facts of why it is being done so soon after the recent one, and be sure you get the original. While there may still be a contest (as anyone entitled to a share of the estate can contest a Will) you would have a much better chance of being successful, and having the doctor available to discuss your father's ability to make the new Will should be a strong point on the outcome of any litigation.
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