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JILLIAN2222

My Mom Verbally Expressed Disinheriting little sister before her death. Written Will is Not her Final Verbal Wishes. Tennessee

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Hello,

My (single, divorced) Mother recently passed away in Tennessee, after being diagnosed with Last Stage Cancers & 2 surgeries all within 6 weeks.

 

I am the Oldest Daughter of 4 children.

 

During her last 2 or so months of her life, she Verbalized to Many Family & Friends that her Wishes were for Oldest Brother to inherit 60%, of which 25% he would give to me as needed for a home & healthcare.  The other 40% was to go to Youngest Brother.

Little Sister was to receive Nothing.

 

I believe Older Brother & Younger Brother were to be co-Executors of the Estate.

 

A 5 year old will was found, and everything in it is different from what Mom Expressed to Everyone before she died.  In that will, Older Brother will have a Trust for me of 11%, to pay out, invest, hold, or whatever he wants with it.  The rest of the Estate is divided in Percentages to my 3 siblings and 2 of Mom's grandchildren.

 

Is there Any way to Enforce her Verbal Will?  Older Brother and (supposed to be dis-inherited) Little Sister started Probate and are Co-Executors of the Estate, totally against Mom's wishes.

 

Mom literally did not have the physical ability to write a new will, for she got deathly ill, had 2 surgeries, was lucid but could barely say our names in such a short period of time.

 

Any and All Help or Further Questions are Very Much Appreciated!!! Thanks!

 

 

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Is there Any way to Enforce her Verbal Will?

 

I disagree with Jack. While the general rule is that only written wills are enforceable and that the verbal expressions of testamenatary intent are worthless, each state has its own laws on this and some states do provide some help in these kinds of circumstances. 

 

First, Tennessee allows for noncupative wills (oral wills made due to “imminent peril of death, whether from illness or otherwise”) only if the person died because of the immient peril and only in the case of disposing of personal property of no more than $1,000 ($10,000 if the decedent was in the military at the time of death). Such wills must be heard by two disinterested witnesses, reduced to writing by one of those witnesses within 30 days of death, and submitted for probate within 6 months of death. This provision may not help you much, depending on exactly what it is that your mother wanted  and how much is involved. It would primarily help you if she expressed a desire for you to have some sentimental keepsake that did not have great value.

 

But there are other ways that your mother's wishes might be put into effect. Tennessee has a somewhat unusual provision in its statutes that allows a court to modify a will to clearly reflect the wishes of the decedent. Tennessee Code § 32-3-114. In addition to that possibility, it may be the case that Tennessee case law (court decisions) will allow a court to impose a constructive trust on your older brother to give you what your mother expressed that she wanted you to have. I have not researched Tennessee law in that regard, but at least some states allow for that in some circumstances. That's not to say that either of these possibilities will necessarily be easy — you're going to need at a minimum some good evidence of what your mother said she wanted. Nevertheless, there is a possibility you might be able to get what your mother said she wanted you to have, and it might be worth at least consulting a Tennessee probate attorney to see what you might be able to do, what your chances of succeeding would be, and what it would cost you to pursue it. 

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I don't know that a court would agree if she had two months to live and told various people she wanted X quite specific arrangement that it's fair to claim a codicil/amendment to her will or entirely new will couldn't be drawn up.  Rather obviously, she didn't need to be "physically capable" of writing the will herself.  (And there's a contradiction between what you say and suggesting this couldn't be done before she was at a point where she could barely say someone's name.)  Evidently, at one and possibly more points, she made her wishes known; it's too bad someone didn't suggest getting a new will or amendment drawn up.  Even if she couldn't physically sign her name, a lawyer could've known that she'd be in a position to direct someone to sign off on a change on her behalf in her presence.)

 

Even if there are aspects of the situation that might be addressed as suggested by Tax, time has probably past to challenge the validity of a now-filed will and probate case. 

You'd need to discuss with local counsel.

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I don't know that a court would agree if she had two months to live and told various people she wanted X quite specific arrangement that it's fair to claim a codicil/amendment to her will or entirely new will couldn't be drawn up.  Rather obviously, she didn't need to be "physically capable" of writing the will herself.  (And there's a contradiction between what you say and suggesting this couldn't be done before she was at a point where she could barely say someone's name.)

 

I agree.  She apparently was lucid enough not only to verbalize a desire to change her will, but also to call out very specific percentages and the creation of a testamentary trust.

 

 

 

Even if there are aspects of the situation that might be addressed as suggested by Tax, time has probably past to challenge the validity of a now-filed will and probate case.

 

There's no factual basis whatsoever for this comment.  First, we don't know that anyone has filed the newly-found will and/or a probate case.  Second, the original post is completely devoid of information regarding a post-mortem timeline.  The only thing we know is that the OP's mother died "recently."  For all we know, the woman died last week.  Third, we don't know anything about any relevant deadlines.

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