Legal Question in Wills and Trusts in Virginia
Contest Will of Incompetent Uncle
My uncle left a will naming my cousin as the Executor. The day of his death family) were informed and given a copy of his will, which had been notarized but not filed in the court.My mother (79) is the only remaining sibling of 4 children, but she was not notified of either the will or the Power of Authority. We were also informed that her daughter had the Power of Authority while he lived, is that possible. The problem with the will is that it appears that my cousin had a ''lawyer'' come in and write this will while my uncle was very ill at the Veterans Hospital, his prognosis was paranoid schezorphia. Remaining monies would be divided among 17 people,7 are her children, who are his great nieces and nephews. 2 remaining sibling both died with 4 children who are included in the will. Can we contest the will and get documentation from cousin and the daughter to provide evidence of spending of funds and purchases. My mother gets the same share as everyone else including her great nieces and nephews. Statements were made at the meeting of such things as $13,000 charge cards purchases, but no receipts as to the purchase of these items. He also owned a 95 DeVille Cadillac. As late as 2/10/04 a $11,000 CD was cashed.
3 Answers from Attorneys
Re: Contest Will of Incompetent Uncle
What you have described is a situation which appears to have nearly all of the circumstances which would justify a challenge to what purports to be your uncle's will-----particularly, the circumstances allegedly under which the will
itself was written and presented to the incapacitated testator(your uncle) for his approval and properly witnessed signature.
These above-referenced circumstances, in effect, embody the classic indicia for a challenge to the will which you have described in your inquiry.
Re: Contest Will of Incompetent Uncle
This is complicated because you are raising a number of different issues at the same time. First, the executor will be required to file some very detailed reports with the "Commissioner of Accounts" in your County (the name could be different in your County). So, when it comes to seeing documentation and exact reporting -- assuming that your Commissioner of Accounts is on the ball in your County (ours is a holy terror) and assuming that the executor does what he is supposed to do -- you will eventually see all of that in hard evidence. It could be a long time, however.
As to the challenge to the will, Michael Hendrickson's answer is of course correct on that point. It may be hard to prove that he was incompetent, however. That is the critical issue. Whether you can prove that or not will be most of the ballgame. Is it your opinion or can it be proven? Are there doctor's who will say this? Etc., etc. I would not advise trying to pursue this without an attorney.
Re: Contest Will of Incompetent Uncle
It appears that you may have a viable caveat proceeding (i.e., a challenge to the will on the basis of the person making the will was not of requisite competency to make a will). Caveat proceedings can be based on other facts in addition to incompetency. This is an involved matter and the assistance of an attorney is highly recommended.
Without seeing the will and the langauge contained therein, your other questions cannot be addressed. Again, an attorney should review these matters.
Yes, it is possible to grant a power of attorney to more than one person. Whether this is advisable or not depends on the circumstances. An incompetent person cannot make a power of attorney and thus an issue similar to that mentioned above for his will may also apply. The type of power of attorney and the specific provisions need to be reviewed.
Transfers while he was alive may be questioned as can any transfer that occurred after his death. The analysis differs for transfers made in life as compared to those after death. Various reporting requirements as well as tax matters apply to transfers made during probate.
Your question presents many issues and the assistance of an attorney is highly suggested.
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