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Tuesday, September 24, 2013

Second spouses are sometimes accused of gold-digging when they inherit an estate

It can be very difficult to accept that a family member would re-marry and leave his or her estate to the new spouse, rather than to his children of the first marriage. This scenario generally leads to suspicions and accusations against the new spouse which often include variations of the word "gold-digger". Recently a reader wrote to me about his family situation, which included a second spouse suspected of manipulation:

"My grandfather recently passed away. He remarried a woman in 1998 after my grandmother passed and we just learned the woman he remarried had all of his savings accounts switched to joint accounts with her name on them. She also had him rewrite his will in 2008 to leave everything to her. My grandfather did not know how to use a computer however she set all his accounts up on online banking. She would pay everything online from his account. However when he got very sick he was in the hospital for a month and the last two months of his life he spent in bed unable to walk. We believe his wife transferred all of the money out of the joint accounts to her accounts online while he was sick, without him knowing. After he passed she simply said he did not have any money. My question to you would be; what ground would my mother and her sister have to stand on? It is not about getting any money, they simply want justice and to learn the truth as they continue to be lied to. Is there any way to view the records from those account in the months prior to his passing?"

I don't have good news for you.  The basic problem is that the accounts were in joint names. It's not possible for your grandfather's wife to go into the bank and change his accounts to joint accounts. Banks don't allow people to just add themselves to other people's accounts. Your grandfather would have to do that. This is not to say that she didn't influence him to switch the accounts, but she could not have done it on her own, and he had to have knowledge of it. And he had several years to change it back if he didn't like it.

The nature of a joint bank account is that both owners have ownership of all the money. Once he put the accounts into joint names, his wife could legally take the funds out for herself. That's how joint accounts work. Whether this was morally right is another issue, but not something the law could help you with.

The issue of re-writing his will is another sticky one. It's certainly not unusual for a man to write a new will leaving his estate to his wife. Depending on where he lived, any existing will he had in place at the time he married would have been revoked in any event. However, it's possible that, as you say, she influenced him to write a new will in her favour. Going against that suggestion is the fact that your grandfather lived another five years after writing that will, and so had opportunity to change it if he wanted to.

However, let's assume that she did influence him to make that will. If your mother, as a likely beneficiary on intestacy, contested the will in court on the basis of undue influence, where would that get her? Assuming she was successful in having the 2008 will declared void, your grandfather's estate would be distributed according to intestacy law. But keep in mind that only assets in his own name would be distributed; this would not include the joint accounts.

Also keep in mind that if by some miracle your mother was able to crash the 2008 will and reverse the joint bank accounts, she would then have to deal with the wife's claim for support from the estate. If there was anything left in the estate after all the legal fees, it would likely go to the wife in any event. This is particularly true given that none of you really know what your grandfather had in the bank.

Who is the executor named in your grandfather's will? Is that his wife as well? The only way I can think of for your mother to have access to bank records is in the capacity of an executor. Otherwise, she has no legal right to see them.

You said you feel that you want "justice" but you may just have to live with the fact that it seems highly unlikely that your grandfather was married to someone for 15 years and held joint accounts with her for much of that time without ever realizing he was leaving his money to her. It looks to me as if this was his choice.

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