Re: Contesting My Father's Will

You presented two questions. First, how do you find out about and locate a prior will. This is a matter of investigation. Talk with any attorney who your father used including the divorce attorney. Contact family members or friends who may have been named the executor/executrix. Contact insurance agents or financial people with whom your dad dealt. Read the will because it may expressly identify and revoke the prior will. Second, how do you prove your dad did not know that he executed a will. You will need to contest the will when it is probated. Under these circumstances you will assert that your father lacked the testamentary capacity to execute a will. This is established in part through medical evidence i.e. his treating doctors stating that he lacked the ability to take care of his financial affairs. It is also established through the testimony of those who were close to him and spent time with him prior to his death. If you establish that your father lacked the capacity to execute a will, the prior will if located will be probated. If no prior will is located then the laws of intestacy will apply which may entitle you to some portion of the estate depending on which state's law applies.

Re: Contesting My Father's Will

I totally agree with Charles, but will expand upon his reply. You may encounter several additional problems. The prior Will may have been destroyed when the new one was signed. However, many attorneys keep the original, so you need to contact his attorneys, or even advertise to see if anyone has the original. A copy may be used as part of an administration (a different probate procedure), if your contest is successful. You will need good medical testimony, plus additional witnesses to your father's lack of capacity when the new Will was drawn. The failure to mention his children and grandchildren may be evidential of lack of capacity. Check with the Surrogate on the law of Wills made within 30 days of death. In many states, a recent Will (one made within 30 days of death) may not be valid. One more caution: How were your father's assets registered and when were these registrations established? If his accounts (house, bank and brokerage accounts) were in joint names with the new wife, any Will will not cover them and the registration controls. The same for designated beneficiaries on life insurance policies and retirement plans. If these registrations were done a short time before his death, you may have to sue/contest their validity as well. A Will contest is very time consuming and expensive, plus there is a lot of investigation involved, which takes time and can be costly. Does the size of his estate justify the time and expense that will be involved? Keep in mind that a widow has certain statutory rights, separate from a Will, and these rights must be kept in mind when you consider what you are getting into. I suggest you contact a good, local estate attorney, familiar with Will contests, to assist you.

Re: Contesting My Father's Will

I have read the other two attorneys' replies to you. All I can add is that your evidence showing that the Will is not valid, has to be fairly strong (that is, it must be much more than the simple fact that the Will does not mention you). It is time consuming and expensive to litigate, but you really do not have a choice. If you have already tried just talking to your father's second wife and gotten nowhere, then you will have to hire an attorney and fight. There will be no other way to try to have the Will invalidated, and avoid having her take under the Will.

It is a serious decision. You need a good local attorney experienced in handling Will contests.