Can a person declared incompetent deemed competent enough to create and execute a new will?

Asked over 2 years ago - Oshkosh, WI

This person was committed to a locked facility for 2 weeks until 24 hour care was arranged through the appointed guardian. Her deceased husbands weapons were removed from the home because this 83 year threatened to come at them with both barrels if they tried to take her from her home.In 2005 her and her late husband who had no kids or siblings created a will.The husband passed away in 2009.She has been under 24 hour care until she passed last month. Six months after being appointed a guardian,deemed incompetent,denied legal council,an attorney went to her home and denied access, she was then deemed competent enough to rewrite her will.She had 24 hour care until her passing.Her care givers have been seen entering her home and removing items by the carload after she passed away. Thank you

Attorney answers (3)

  1. Ashley Sturtevant

    Contributor Level 6

    Answered . In order for a Will to be valid the person executing it would have to be competent at the time of the execution of the Will. Whether she was incompetent before or after signing the will doesn't automatically mean she was incompetent at the time she signed it. However, it does lend some question as to whether she actually understood what she was doing when she signed it. It sounds like you may have some legitimate concerns regarding this matter. It would be beneficial for you to meet with an experienced probate attorney in your area who can help you protect your interests. Good luck!

  2. Eido M. Walny

    Pro

    Contributor Level 6

    Answered . As the previous commenter notes, the test in WI is that the person was competent at the time of signing. So even a person has issues 98% of the time, if they execute their will during that 2% when they have their full facilities, that is a valid document. The issue at that point becomes one of evidence. Witnesses and basic testing at the time of signing are prudent. Short of that, it comes down to what the probate court will believe. Those fights can get messy and difficult, however.

    This answer is intended for informational purposes only and does not create an attorney-client relationship between you and the attorney.

    This answer is intended for informational purposes only and does not create an attorney-client relationship... more
  3. Amanda L. Wieckowicz

    Contributor Level 10

    Answered . Who was the beneficiary of the new will? If it was a caregiver, then that looks very suspicious and increases the likelihood that she was unduly influenced into creating the new will. You can be the subject of undue influence even if you are not incompetent and a will can be invalidated for that reason.

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