my father in law passed last week, there are 5 children in the family. 2 of his children have been staying with their father durning his last 3 weeks of life. one of the children staying with him has managed to get her father to buy her 2 cars, 3 laptops and several other things for herself and her family. plus she has been using his credit card freely, dinners, cloths,etc. The man has over $100,000 in savings and a house with no mortgage. The child who has taken everything is now saying she is taking all the money from the savings for lost wages and caring for her father. She is a preschool helper and lost 3 weeks of work. How much lost wages could there be. the will states all assets must be split 5 ways equally. do they have a leg to stand on to fight her
A probate petition should be filed with the Surrogate’s Court as soon as possible. If the child that you are describing is also the proposed executor in the will, then one of the other children can seek to have someone else appointed, although the procedure for doing so will be more complicated. Once appointed by the court, the executor can take control of the decedent’s assets and distribute the assets according to the provisions in the will. The child who spent the decedent’s money may be required to reimburse the estate or have the money that she took taken out of her share of the estate. You should consult with a probate attorney as soon as possible in order to prevent any further loss of estate assets.
You can read about probate proceedings in New York on my website at:
She is not entitled to be paid unless she can prove that her father agreed -
virtually impossible now.
You should hire a lawyer.
Joseph A. Bollhofer, Esq.
Joseph A. Bollhofer, P.C.
291 Lake Ave.
St. James, NY 11780
Member, National Academy of Elder Law Attorneys (NAELA)
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The closeness of the blood relationship bears only on the reasonableness of the plaintiff’s and defendant’s expectations of payment. As previously discussed, other factors, such as the nature of the service, also should be considered in determining reasonableness. Extraordinary service and commitment that does not normally exist among family members may be sufficient to dismiss the notion that a family relationship would cause the parties to reasonably believe the services were performed without the expectation of receiving payment.Many states have an evidentiary rebuttable presumption that services rendered to a family member are gratuitous in nature, so the care-provider cannot recover.35 However, in states with such a presumption, these are not always hard and fast rules. In West Virginia, for example, the mere fact that persons are related by “blood”36 is not itself enough to trigger the presumption.Answering “yes” to the questions below will strengthen a case based either on: (1) a contract implied in fact, to show the expectation of payment was reasonable; or (2) a contract implied in law, to show that it would be unjust not to compensate for the benefit received.
1. Were the services provided by the claimant a type for which one customarily pays?
2. Would a stranger have had to render those services if the family member had not?
3. Specifically, how much would it have cost to have a non-family member provide the same services?
4. Was there a sense of contractual obligation to the claimant by the decedent?
5. Is there any evidence that the claimant intended to charge the decedent?
The evidence should demonstrate that the expectation of payment was reasonable, given the extraordinary nature of the services provided and nature of the relationship of the partiesTypically, standing to contest the validity of a will is limited to two classes of persons:
Those who are named on the face of the will (i.e. any beneficiary);
Those who would inherit from the testator if the will was invalid
The following example is instructive: Monica makes a will leaving $5,000 each to her husband, Chandler, her brother, Ross, her neighbor, Joey, and her best friend, Rachel. Chandler tells Monica that he will divorce her if she does not disown Ross, which would humiliate her; later, Ross tells Monica (untruthfully) that Chandler is having an affair with Phoebe, which Monica believes. Distraught, Monica rewrites her will, disowning both Chandler and Ross. The attorney who drafts the will accidentally writes the gift to Rachel as $500 instead of $5,000; and also accidentally leaves Joey out entirely.
Under these facts, Chandler can contest the will as the product of fraud in the inducement, because if the will is invalid, he will inherit Monica's property, as the surviving spouse. Ross can contest the will as the product of Chandler’s undue influence, because Ross will inherit Monica's property if Chandler’s behavior disqualifies Chandler from inheriting (note, however, that many jurisdictions do not consider a threat of divorce to be undue influence). Rachel has standing to contest the will, because she is named in the document – but she will not be permitted to submit any evidence as to the mistake because it is not an ambiguous term. Instead, she will have to sue Monica's lawyer for legal malpractice to recover the difference. Finally, Joey is neither someone who stands to inherit from Monica, nor named in the will, and therefore is barred from contesting the will altogether.
I agree with Attorney's Doktofsky and Frederick. I just want to add that you should determine whether the (grabby) sister was also an attorney in fact under a Power of Attorney. That sets up the question about whether there was undue influence.
Also be ready to discuss with counsel just what capacity the decedent had. If they lived with him the last three weeks of his life, it almost sounds like hospice care where he may not have had good capacity to make gifts or contractual capacity.
How do you use someone else's credit card if you are not a signer?
Wow. That takes a certain level of Chutzpah, among other things. John McEnroe used to have an expression for things like this, "You cannot be serious!" No, she does not have a claim on the savings for her three weeks of services. If the cars and laptops were purchased in the last month, then I would think the estate would have an action to have those either set aside or treated as an advancement of her inheritance.
In any event, if she is serious about pursuing this, it is likely to cost everyone some money, and in that case, you will certainly need to hire an attorney to protect yourself. Hopefully, she is speaking and acting out of grief and she will come to her senses in the near future.
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