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Which will is valid? Is a will prepared in 1988 valid or the will in 2011/12 if elderly was diagnosed with Alzheimer's/dementia

New York, NY |

My mother executed a will in July 1988 in NYC. She became incompetent due to dementia and Alzheimer's disease in July 2008. I was DPOA in 2008. Mom didnt revoke my DPOA but my sister got POA in 2009. Mom died in April 2012. My sister cleaned out whatever monies was in Mom's bank account since it was not longer in joint with me as it was since 1978 but in a social security representative payee account. I retained counsel in SC to probate the property in Mom's 1988 will. I was informed that my sister has retained counsel and presented a more recent will to a lawyer in SC. Mom didn't know where she was living much less have the ability to execute a new will.

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Attorney answers 3


If you can prove undue influence or incompetence-the will be be set aside.
You need a probate litigation attorney ASAP.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


Have the SC lawyer file objections with the court ASAP. You should be able to get the will knocked out for lack of testamentary capacity.

This answer is made for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney that practices in the subject practice discipline and with whom you have an attorney client relationship along with all the privileges that relationship provides. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party, any partnership, investment plan, arrangement, legal structure or other transaction addressed herein.


I agree with the other two responses. It appears you are in for a fight. It also sounds like you are already represented by counsel, so these are issues that you need to address with your lawyer. Your case is complex and you have issues not only with the Wills in question, but also whether or not it was appropriate (or permissible) for your sister to change the nature of your mother's bank accounts. It may be that you can have those changes set aside by the court.

Best of luck to you!

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.

Martin L Bearg

Martin L Bearg


I hate family fights, but it seems when mom and dad die, siblings often get into this type of dispute. If your sister, as agent, holding a fiduciary duty to utilize your mother's Social Security for her benefit, utilized for your sister's benefit, this is not only a breach of her fiduciary duty, assuming mom was not legally incapacitated, it mat arise to elder abuse and a criminal act of theft. The attorney who draft the documents, assuming mom was clearly suffering from Alzheimer's disease, may also have exposure. Consult with your SC attorney. We are unable to provide advice as out of state attorneys and as you are represented by an attorney.

James P. Frederick

James P. Frederick



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