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Wednesday, April 10, 2013

Does the lawyer have to tell me if my aging parent makes a new will removing me as executor?

Finding out after an elderly relative dies that his long-standing estate plans were secretly changed shortly before his death can be a real shock. A reader of this blog recently found herself in this situation, and asked me whether the lawyer who made the changes to the will was obligated to tell her she was no longer the executor. Here is her question, followed by my answer:

"About 8 months ago my father died. I was executor of his will for a very long time. He gave me instructions what to do. I was his caregiver. A couple of weeks after he died my father`s lawyer advised that my father's will was changed a few weeks before, when I was out of the country. I was removed as executor and I was not mentioned in the new will. Everything went to my step mother – all insurance policies, bank accounts cleared the day after my father`s funeral without any notification or reading of will. Is it the responsibility of the law firm to notify an existing executor of any changes being requested in the will, especially when their client is in hospital, medicated and dying and 90 years old?"

No, it's not the lawyer's responsibility to let an executor, or anyone else for that matter, know that they are making changes to a client's will. In fact, they would be in breach of their legal ethics to tell this to the executor. All clients are entitled to confidentiality from their lawyers, and this does not disappear just because a client is old and sick.

Being named as the executor in someone's will doesn't give you any rights whatsoever while that person is still alive.

There is no obligation that a reading of a will be held. That was a tradition that has pretty much disappeared now.

If a lawyer was asked to make a will for an elderly, sick person, the lawyer must carefully evaluate whether that person is mentally capable of giving instructions for a new will. If not, the lawyer should not make a new will. Just by the fact that the lawyer prepared the new will, you should expect that the lawyer found your father competent to make a will. Not that lawyers are infallible of course.

Please don't take this to mean that I'm dismissing your concerns. The only part of your concerns that I'm dismissing is the idea that the lawyer should have told you about the changes. The rest of your story really does alarm me, given that there was such a change from the previous will to the current will, and the fact that the timing of the changes appears to have been co-ordinated with your absence due to travel.

This is worth discussing with a lawyer in your area. And not the lawyer who is already involved, as that lawyer would be placed in a conflict of interest should you consult him or her, and would not be able to help you. Do everything you can to find a lawyer with experience in estate litigation, as that is likely where you are headed.

It appears, at least at first glance, that your father may have been influenced or coerced into signing a new will that doesn't really reflect his intentions, or that he didn't really understand what he was signing. He will very ill and near death, and therefore in a weakened condition. You said that he was medicated, and we know that medication can seriously impair mental capacity. 

These are serious allegations and you cannot make them lightly, but they are important enough to investigate.

As your father and step-mother were married, he is obligated by law to ensure that his estate adequately provides for her. However, in second marriages, it is not at all unusual for the second spouse to receive less than the full estate, as the children of the first marriage may be named as beneficiaries as well.

You say that eight months have passed since your father passed away, so there is no time to lose if you want to take this further.

2 comments:

  1. I just read through the entire article of yours and it was quite good. This is a great article thanks for sharing this informative information.

    Construction Accident Lawyer St George

    ReplyDelete
    Replies
    1. Great. I was hoping that my information was "informative"... :/

      Lynne

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