Legal Question in Wills and Trusts in New York
Revising a will
My father has a will that has been in place for years, that was witnessed and completed by his attorney at the time. The attorney of record has since died and my mother and sister are now trying to revise the will. My father is dying of cancer and know longer recognizes family and is now unable to care for himself. He answers simple questions, but can't fully engage in rational conversations. My question is, can my mother and sister have the will revised without the consent or input from my father, given his declining condition. I personally want my fathers wishes to remain intact. Please advise.
2 Answers from Attorneys
Re: Revising a will
NOTE: This communication is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication without first presenting ALL relevant details to a competent attorney in your jurisdiction and then receiving the attorney's individualized advice for you. By reading the "Response" to your question or comment, you agree that the opinion expressed is not intended to, nor does it, create any attorney-client relationship, nor does it constitute legal advice to any person reviewing such information, nor will it be considered an attorney-client privileged communication. If you do not agree, then stop right here, and do not read any further.
First, my sympathies for your father's situation.
You should obtain copies of any and all medical reports relating to your father's state of mind and capacity to make a will. Get the names of his attending physician and the names of nurses and other caretakers.
Although it is highly unlikely that an ethical attorney will supervise the execution of a new will if your father's mental condition is as you have described, you never know, and, if you are excluded from your father's new will, you may need to contest that new will when it is offered for probate by the Executor.
As an heir at law, you are required to receive a notice when and if that takes place.
Re: Revising a will
While I generally agree with Arnold, I add the following. You do not say if any material changes are being considered, or if this might have been suggested due to outside reasons, such as tax planning, Medicaid considerations, etc. There may be legitimate reasons for changes to be made, and you have not said if the changes are intended to change what your father ultimately desired. If your father does not have the capacity to make a new Will, any change that materially alters his original intent can be contested based upon that incapacity. In light of the fact that there may be legitimate reasons for a change, more information is needed to provide a better answer.
This response is not intended to create an attorney-client relationship and is merely a response to an Internet question.
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