Invalid Will filed with Probate

Asked over 2 years ago - Green Bay, WI

An invalid will was filed for a family member in 12/2011 in Wisconsin. The will was printed off of legalzoom.com. The "Self-proving Affidavit" was signed and notorzied at a local bank 1 month before the person died. (He was receiving Hospice Care at the time and not in the correct frame of mind). The rest of the will is NOT intialed and the back page of the will is signed but NOT notorized. The will does NOT match the expressed wishes of the person. It is now April 2nd, and the will has not be read or passed out to the heirs by the executor of the will. The executor has no idea we received a copy through the county court. There has been suspicious activity with the executor and her husband for years, especially at the time of death. What should we do?

Attorney answers (3)

  1. Daniel J. Krause

    Contributor Level 11

    6

    Lawyers agree

    Answered . You have some serious issues that should be discussed with a Wisconsin attorney. Here are the issues I see:
    1. Possibly improperly executed document. If the document was not properly signed by the decedent and witnessed by two adults, it may be invalid. The notarization is not necessary to make the will legal, but it can help to prove the witnessing in court. Without examining the will, I am unable to give an opinion on whether it was properly executed.
    2. Incapacity to make a will. If the decedent did not have the state of mind to make a will (testamentary capacity), then the will is invalid. This is very hard to prove after someone is passed. Testamentary capacity only requires that a person know who his natural heirs are (usually children) and also know, or have a good idea of what he owns. There is no requirement that the person know what year it is, or who is the president.
    3. Improper influence or coercion. If the decedent was improperly influenced or coerced into making certain provisions in his will, then it can be invalid.

    You should hire an experienced Wisconsin attorney to look over the document you have, and discuss the other facts of the case.

    Any advice given through the Avvo site is for hypothetical purposes only, and does not create an attorney-client... more
  2. Steven M Zelinger

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . If you have questions about the validity of a will, you should hire counsel to assess the situation and quickly approach the executor to protect your rights and make sure assets are not squandered before it is too late.

    That said: 1. just because a will was created using legal zoom does not mean it is invalid, 2. if there is a self-proving affidavit properly signed and notarized it does not matter where that happened or how soon close to death it happened in and of itself. The proximity in time and the state of mind of the testator are certainly factual issues to determine if he did not have capacity to make a will or was under undue influence, but those are all factual issues that have to be addressed if there was a suit; if you feel strongly about it you should documnet and gather information with your attorney's assistance about all these claims. 3. The fact that the pages of the will are not initialed is also not necessarily relevant because some people/attorneys do not engage in that practice although a missing "initial" can indicated a page was switched or something along those lines. 4. You also say that the will was notarized at a local bank but you later say the last page was not notarized? That is confusing. Most wills must be witnessed by two witnesses but a notary may not be necessary (although I defer to WI lawyers on that one).

    Again, if you feel strongly about your case go see a lawyer. You have a lot of circumstantial issues here which taken together may mean something but alone can't help you answer the question you really have.

    This is not legal advice nor intended to create an attorney-client relationship.
  3. James P. Frederick

    Contributor Level 20

    1

    Lawyer agrees

    Answered . The other responses make good sense. Unfortunately, you need to PROVE that the Will is invalid. You need to prove lack of capacity or undue influence. Alleging them does not make the Will invalid. It also is not invalid just because it was from LegalZoom. Some LegalZoom wills turn out to be perfectly valid. You need evidence to overturn the Will. The burden of proof is against you.

    Also, there does not need to be a "reading of the Will" in order for it to be valid. Although this used to be a staple of old time tv shows, it does not happen very often, these days.

    You will need testimony or an affidavit regarding the notarization, as well as medical records of the deceased.

    James Frederick

    I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice... more

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