I have been sent a copy of a codisil to my Uncle's Will asking if I have any objections to his brother being the Executor of the Will. In the codisil it stipulates this "I hereby revoke all my prior Wills, Codisils and other testamentary dispositions and direct the following:..." it goes on to state that my Uncle's brother is the sole beneficiary of all his assets of every kind. Could this mean that I or my mother (who is deceased) could have been a beneficiary on a previous Will? Also, my Uncle signed this new Will while he was in a nursing home so I have reason to believe that he was not of sound mind at that time. What can/should I do? Can I see a copy of the Will before it goes to probate? (I am in Florida, but this took place in New York)
As a potential beneficiary of your uncle's estate, you have the right to object to the probate of the Codicil. There are a number of legal defenses that can be raised, one of which, as you allude to, was your Uncle's mental/physical capacity at the time of the execution of the Codicil. You need to immediately retain a New York attorney skilled in estate litigation. Moreover, if you were provided with a Waiver & Consent to execute, you should have received a copy of the Codicil and you can demand to see a copy of the original Will. You shouldn't sign anything until you consult with an attorney.
The answers to your questions are (a) could be a few reasons, but that would be guessing; (b) it could, (c) consult an attorney in New York, and (d) maybe. Because a codicil does not revoke a prior will, but amends it, either you have misquoted the codicil or it was drafted by someone who doesn't know what he or she is doing (which speaks to your "sound mind" concern). Hire an experienced NY estates and trusts attorney. If you need an attorney in Rochester, I can make a few referrals for you. - Ian W. MacLean
This is not legal advice. If you would like legal advice, please contact the firm. The firm offers legal advice only to clients who have retained the firm in writing. New York ethics rules for attorneys and the rules of the Appellate Division require an written engagement letter or retainer agreement for all matters anticipated to exceed $3,000 in legal fees.
You have a complex situation. I agree with Mr. Maclean that the language in the codicil sounds odd. For this reason alone, you should investigate further. You may also try to get more information on your uncle's medical condition. That could have a big impact on your chances for success.
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Estate Planning Attorney
In New York all distributees must be notified of the probate of a will. A Distributee is someone who would inherit if there was no will. Thus if you really think your uncle's will was signed under duress, incompetence or some other nefarious situation you could contest the admission to probate of the will but the burden is quite high. You may wish to consult an attorney to examine the facts of your situation.
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