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Can common law husband have a legal will changed if she can't remember that her house is HER HOUSE?

Crowley, TX |

her common law husband managed to have 3 attorneys say she was competenant when for months prior to the new will drawn up to give him 100% of POA over everything and estate and possessions she was found wandering the streets and didn't know where she was or where she lived. was getting lost in her own home. We want to put her in a long term home care and he refuses to consider it sayign she can't afford it AND her house bills (her house is paid off). he won't consider in home care, and lets her wander out several times a day not dressed appropriately for the cold weather and yells at her and constantlt loses patience with her. Can we file for exploitation and negligence to gain gaurdianship and get her the care she needs before its too late? and have old will reinstated?

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Attorney answers 3


You need to separate your concerns here. Wills are of no effect until they are offered for and admitted to probate. If, after the wife's death, a Will is offered for probate, and there are issues regarding the wife's TESTAMENTARY capacity at the time of their execution, that's an issue to be decided then. If you have standing to contest a Will at that point, that's when you'd bring up the issue regarding disposition under the Wills.

The more pressing issue is the current care of the wife -- her ability to handle her personal affairs and financial matters. If you have reason to believe that the wife's husband is passively or actively endangering the wife, guardianship is very likely your best legal recourse. An application may be filed by any interested person. The husband would receive notice of the proceeding by virtue of his relationship as well as his standing as agent under the Power of Attorney. He would likely use the POA as a defense to guardianship, and/or assert that if a guardianship is necessary, he should be the guardian.

You do not mention your relationship to the wife, but rest assured that given your description of the facts, the husband would defend against the imposition of a guardianship. The wife might do the same thing. Courts are not quick to grant guardianships, but this last resort is often the only alternative that adequately protects an incapacitated person from themselves and others.

I see that you're posting from the Crowley area. I encounter issues like yours regularly in my Dallas/Fort Worth practice. If you'd like for me to elaborate on my response, or just point you in the right direction, feel free to contact me through the link below or through my profile on this website.

This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.


Not much to add from Mr. Thomas' insights. You would be well served to speak with him as he regularly offers meaningful insight, and excellent experience and judgment at this forum. Give him a call.

Hope this helps.

Please remember to designate a best answer to your question.

Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is , his website is and his blog is

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To have legal capacity to sign a will a testatrix only needs to know what she has in her estate, who her family is, and who she is giving it to at the moment she signs the will. Thus, you can be "incompetent" 5 minutes before signing the will and there is still legal competence. It sounds fishy that the common law husband went to three attorneys getting an opinion on her competence since usually it is a non-issue and asking 3 different people somewhat infers that he had a question about her capacity.

The other answer given is correct, a guardianship is the best way to protect the wife if her needs are not being met by her common law husband. The applicant would have to prove that she is incapable of caring for her person, finances, etc. Typically, if a proposed ward has already granted a power of attorney to another person a guardianship usually isn't needed. However, if you think she lacked capacity when she signed the power of attorney then it would be invalid.

It would be best to discuss with an attorney to discuss the case in more detail.

This answer is provided for your general information based on the facts given and that it is not legal advice and does not create an attorney-client relationship with either Ms. Lindsay or the Law Office of Claire Lindsay. It is recommended that you consult with an attorney licensed to practice in your jurisdiction for specific legal advice to your situation.