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Need opinion of California attorney regarding will, emails between surviving two children and dementia issue.

Los Angeles, CA |

Older child had no knowledge of will. Younger child who still lived near mom said there was none. After mom's death both signed a paper via email agreeing to evenly split $. A month later the younger sent email to the older, stating he didn't want anything and older could have it all. A few weeks later younger child emails copy of mom's 2008 will that leaves everything to him only. It specifically "disinherits" older child. Will is typed. Mom signed last page and initialed other pages. Younger child is listed as a witness. A friend of younger child is also listed as a witness. Not notarized. And to add a twist - same month as will is dated, younger child took mom to doctor for memory problems. Ends up she had alzheimers but never saw neurologist or got aricept until 2010.

The only date on the will is typed within the text

Attorney Answers 3

  1. You should consult with a probate attorney right away. Your brother is an "interested witness." Unless there are two other witnesses to the will who are disinterested, the fact that the will makes a devise to your brother creates a presumption that it was procured by duress, menace, fraud, or undue influence. (California Prob.Code § 6112.) Unless your brother can disprove this presumption, you should be able to have the provision granting him the entire estate undone.

  2. Interesting situation. I assume that your brother has now changed his mind about leaving the entire estate to you? As Attorney Weiss indicated, your brother has a real problem with the Will because he was an interested witness. If he persists in trying to claim the entire estate, I believe that you WILL need to hire a probate litigation attorney to assist you with this. Perhaps you can both agree to simply split the estate, however, and save both of you thousands of dollars in legal fees.

    James Frederick

    *** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.

  3. You should consult with a probate attorney right away

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