Dementia and Alzheimer's disease and estate & inheritance fights

The Alzheimer’s Association has provided 10 early signs of dementia that may merit a visit to a doctor for further testing:

• Memory loss that disrupts daily life;

• Challenges in planning or solving problems;

• Difficulty completing familiar tasks at home, at

  work, or at leisure;

• Confusion with time or place;

• Trouble understanding visual images and spatial

  relationships;

• New problems with words in speaking or writing;

• Misplacing things and losing the ability to retrace

  steps;

• Withdrawal from work or social activities;

• Decreased or poor judgment; and/or

• Changes in mood and personality.

  See “10 Early Signs and Symptoms of Alzheimer’s” at https://www.alz.org/alzheimers-dementia/10_signs.

"Slayer Rule" - "Wrongful Feath" The heir wrongully killed the decedent or worse is a murderer?

In Texas, under the “Slayer Rule”, it is the legal principle that prevents someone from inheriting property if they have caused the death of the person from whom they would inherit. The Slayer rule is in place to prevent the bad actor from profiting from their own wrongdoing, and to ensure that the deceased person's property is distributed according to their wishes or according to the laws of intestate succession. This can impact an estate including a Will and Life Insurance.

Will Contest Process & What to Expect

In Texas, a Will Contest requires an interested person brings a lawsuit. They are typically beneficiaries of a prior Will; Or those who would inherit in the absence of a Will.

Contesting (Challenging) a will involves filing a lawsuit (petition) with the probate court or county court in smaller counties. Typically, the will contest must be filed within two years of purported Will being offered and admitted to the court. (not date of death)

After a period that can take years in some cases in which the parties marshal and gather their evidence as explained herein, the probate court holds a jury trial to make a decision on the claims in the lawsuit. Prior to that, the Judge will typically have or require:

• Hearing for arguments on a summary judgment as to rule of law

• Hearing for arguments on a summary judgment as to whether there is Evidence as to claims

• Most courts require the parties to go to mediation (dispute resolution with a third party)

• Most lawsuits will involve subpoena of records and depositions of parties and witnesses of the case.

Proving claims of Fraud, Lack of Capacity, or Undue influence requires introducing evidence and testimony at the Trial. Evidence in Will Contests may include much of the following:

• Medical Records & Prescription Records & Financial records.

• Evidence and other relevant written documents such as estate planning documents; social media; emails; phone records; pictures; audio recordings, etc.;

• Testimony of doctors and other health professionals;

• Testimony of people present at execution of the will, including witnesses who signed the Will and a notary. This may include the drafting attorney and his staff;

• Testimony of close family members and close friends of the decedent and even perhaps neighbors and/or business colleagues;

• Testimony of caregivers and other domestic help;

• Testimony of hired Experts by the respective parties;

• Testimony of professionals (lawyers and financial advisors) who assisted the decedent

The evidence includes showing the decedent’s state of mind at (execution) signing of the alleged purported Will, as well as relevant circumstances prior to and following execution of the will.

How Long After Probate Can a Will be Contested?

How Long After Probate Can a Will be Contested? - typically two years after the court admits the Will to probate. So it is NOT two years from the date of death. It isn to 2 years from filing of the Will. Again it is two years from it being ordered as admitted unless there was Fraud in which case you need to consult an attorney as it is 2 years from discovery of the Fraud or when you should have discovered it.

There are other exceptions such as:

• There are would be heirs that were minors

• Probate of the Will was incomplete

• You can still sue the executor for Breach of fiduciary duty which is within for years of act and sometimes longer if discovery was of act was not discoverable.

On What Grounds Can you Challenge a Will?

For what reasons can you challenge a Will?

There are myriad of ways to challenge a Will including but not limited to:

Scrivener’s error - the will has a mistake making it incomprehensible; incomplete; or contradicts itself.

Fraud - can be the altering or forging a Will

Undue Influence - making someone do something they would not others due

Undue influence exists if a person used a position of power over the deceased to “influence” that person to change the Will to benefit the person with the power in a way that the deceased otherwise would not have done.

• Opportunity; Coercion; Deceit; Deception; Manipulation; Threats; Isolation from Lvoed ones; Control of the testator; False Promises; etc.

• Who met with the estate attorney to draft the Will?

• Who communicated with the Estate attorney for the terms of the Will?

• Who was with decedent when the Will was signed?

• Did the decedent take himself to attorney to execute the Will?

• Did they read the Will?

• Was there Mental and/or Physical Abuse

Lacking Capacity - from illness like dementia or alzheimer’s disease

In order to prove a lack of capacity, there must be evidence of the decedent's mental state, showing that there is evidence that the decedent (testator) lacked one or more of following:

• Did decedent know the bounty of their estate or what he owned or possessed

• Did they know the precise nature and provisions of the will

• Did they know the nature, extent, and condition of his or her assets and property

• Did the decedent know who were the individuals who ordinarily would inherit his or her estate

  *evidence about a person’s memory decline or impairment, lack of comprehension and judgment, and inability to communicate constitute circumstantial evidence to help prove the claims.

Diminished Capacity with undue influence - the greater the decedent’s impairment the less undue influence is needed to prove undue influence.

Mistake in fact - such as thinking some had passed away or they had taken care of other loved ones by other mans.

Formalities of executing a Will were not followed:

• There needs to have been two signatory witnesses on the Will itself unless it is a holographic Will (entirely handwritten Will)

• The Will has to show testamentary intent

• The Will needs to have been signed by the Testator and witnessed

• The Will has to be the original document albeit there are exceptions

• The Will cannot have been revoked by Testator

• The Will can not have been altered or changed after execution

  Does a Will need to be notarized?

• No

  Can you probate a copy of Will?

• It depends, consult your estate attorney

  Can you probate a handwritten Will (holographic Will)?

• Yes

Who Can Challenge or Contest Wills?

Who Can Challenge or Contest a Will?

Next of kin otherwise known as the intestate heirs or beneficiaries of the prior Will can challenge a Will.

Can step-children challenge a Will?

That is fact intensive question and the answer is it depends.