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tmo1987

Contesting will on grounds of misrepresentation and mental illness

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Hello I have a question about an adult child that recently committed suicide. He set up a will in the state of Nevada (Las Vegas) to leave all his asset that I gave to him FOR HIS OWN RETIREMENT, instead he gave it to charity. The charity is located in San Francisco and the asset was in Vanguard & T.RowePrice mutual funds as well as personal bank account. When he took his life, he sent an email to the charity informing them of the beneficary status under the will and Transfer-on-Death plans. The mutual funds say they have a Transfer on Death policy that collects the money automatically, there’s nothing I can do. However the money in the bank account is covered by the will only.

 

We are interested in contesting the will on the following 2 grounds.

1. The will is set up in the state of Nevada, but the death occurred in foreign country(Mexico).

2. The will is signed by 2 witnesses asserting the testator is of sound mind. The will is dated Jan 31th. But we are in possession of text messages sent to a friend on Jan 28th provnig he was NOT of sound mind at the time he set up the will, here are some examples.

>>SISTER KETTY, I’M SORRY THAT GOD FOUND ME SO DISGUSTING THAT HE TOLD ME TO KILL MYSELF, AND I STILL HAVE NOT DONE IT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

>>SISTER KETTY, I AM ALSO LUSTFUL, LAZY, GLUTTUNOUS, IMPATIENT, DISOBEDIENT TO PARENTS, MONEY LOVING, AND MARRIED TO THE WHORE OF BABYLON. BUT I AM NOT SORRY FOR THOSE THINGS. INSTEAD I KEEP DOING THEM EVERY SINGLE DAY OF MY DISGUSTING LITTLE LIFE

>>LYING, LYING, LYING, LUSTING, LUSTING, LUSTING, COVETING, COVETING, COVETING, IDOLIZING, IDOLIZING, IDOLIZING. I ONLY TAKE A BREAK FROM ONE SIN (LIKE YOU ADVISED) SO I CAN SIN IN ANOTHER WAY.

>>WHY WOULD ANYONE BE SAD WHEN I DIE???? WHY??? WHY? WHY????? WHY???????? WHY?? WHY? WHY???? WHY????????

 

This shows he was suffering from some kind of paranoid schizophrenic(not diagnosed).

 

How can we introduce this evidence to a court and recover the money from BOTH the bank account and mutual funds, for our 2 remaining children? Thank you for your help.

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Sorry, but when it comes to making a will "sound mind" means that a person understands that he has assets, what they are, and to whom he is leaving them.

 

That he actually had the presence of mind to notify the beneficiaries of the bequests is further evidence of the "sound mind" required for the making of a will.

 

I don't think you will succeed in contesting the will but feel free to consult an attorney and review your options.

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On 3/15/2019 at 5:34 PM, tmo1987 said:

We are interested in contesting the will on the following 2 grounds.

1. The will is set up in the state of Nevada, but the death occurred in foreign country(Mexico).

 

That's not a ground for contesting a will.

 

 

On 3/15/2019 at 5:34 PM, tmo1987 said:

How can we introduce this evidence to a court and recover the money from BOTH the bank account and mutual funds, for our 2 remaining children?

 

You'll have to consult with an attorney in the area where this person died.  Likely, you'll have to petition to probate the estate and may have to sue to recover the money that was transferred a result of a POD provision.  Whether the text messages will be sufficient to get the job done is something about which only a local attorney can opine intelligently.

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The fact that he died in Mexico does not make his will invalid. Contesting a will on the grounds of mental illness is not a proper grounds for a contest. A contest can be done on the grounds that the person lacked the capacity to make a will. The capacity to make a will does not require a whole lot. A person can have a mental illness and still be competent to make a will. So I think you'll need more than just those e-mails to prove that he was incompetent. As pg1067 suggested you should see a probate attorney in the state where he resided at the time of his death (that he died while visiting Mexico does not make Mexico his place of residence). Also, will contests can get expensive. How much money is in those bank accounts?

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So sorry for your loss.

 

Have you checked with the bank to see how the bank account was titled, or find out if he filled out a beneficiary designation card?  They probably won't release that information to anyone except the executor of his estate.  Has anyone submitted the will to probate court yet?  Where is the will?  

 

Have you looked through his personal papers to see if you can find bank statements that would show how the account is titled?

 

Have you talked to an attorney to find out if the will would even be accepted as valid in a Nevada court of law?  You need to at least find out from an attorney if the widow has any legal right to any of his assets and if the will could be challenged on that basis.

 

What does his wife have to say about being left out of the will?

 

Do not waste money in expensive attorney fees to try to contest a will that you have no legal basis to win.

 

Write a brief letter to the charity pleading the financial needs of the 2 children and humbly and politely ask them to donate a portion of the proceeds so that you can set up a trust

account for the children.  Due to the tragedy of this death, they may sympathize with your family and make the donation.  But please realize that the money is theirs to do with as

they please and that they are not obligated to do anything for your family.

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The wife (if there is one) or the mother needs to contact each mutual fund company to ask if he filled out a beneficiary designation form for the mutual fund account.  His wife may be the person who could look for his bank statements at his home or ask for copies of them at the bank.

 

If he did designate a beneficiary, then that beneficiary gets the money.  It is also possible that there may be rules/regulations that specify a surviving spouse receives a certain portion of this money.  A beneficiary designation will always take priority, and will apply no matter what the will says.

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The will says the charity is 100% beneficiary. But it is an invalid will made duing mental distress. As we can tell he has no wife in Mexico, the messsage about the marriage is a CLEAR sign of psychotic. The will was authorized by a expensive law firm, I dont know what they did to make him sign. We intend to sue. The amount of money in the Transfer on Death accounts are around 500,000$ and in the bank account 25,000$ but there may be Other bank accounts we do not know about. If anyone can provide an estimate of attorneys fees please send a message to this account.

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2 hours ago, tmo1987 said:

The will says the charity is 100% beneficiary. But it is an invalid will made duing mental distress.

 

Simply the fact that he had a mental illness does NOT make a will invalid. Lots of people have various degrees of mental illness and can make valid wills. Only if his mental state was such that he truly lacked the capacity to make a will would the will be invalid. If the state of probate is Nevada, then the standard for capacity is this:

 

Quote

Testamentary capacity exists when the testator (1) understands the nature of the act he is doing, (2) recollects and understands the nature and situation of his property, and (3) recognizes his relations to the persons who would inherit via intestacy. In re Lingenfelter's Estate, 241 P.2d 990, 997 (Cal. 1952). “Testamentary capacity is always presumed to exist unless the contrary is established.” Moore v. Anderson Zeigler Disharoon Gallagher & Gray, P.C., 135 Cal. Rptr. 2d 888, 900 (Ct. App. 2003) (citation omitted); see also 79 Am. Jur. 2d Wills § 90 (2016) (“Testamentary capacity in the testator is thus presumed, especially where the will is shown to be executed in legal form.”) (internal footnote omitted).


Matter of Blanchard, No. 67099, 2016 WL 3584702, at *4 (Nev. App. June 16, 2016). That's a standard that a lot of states use. Put in more plain English, he had the capacity to make a will if at the time he signed it he could do the following:

 

1. Tell you that the document he was signing was a will that will distribute his property to others after he dies;

2. Tell you generally what kind of property he owned; and

3. Tell you who his close relatives are.

 

If he could do those 3 basic things when he signed the will then you won't get the will invalidated because of his mental state.

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15 hours ago, knort4 said:

The wife (if there is one) or the mother needs to contact each mutual fund company to ask if he filled out a beneficiary designation form for the mutual fund account.

 

The original post is pretty clear about this.

 

 

13 hours ago, tmo1987 said:

But it is an invalid will made duing mental distress.

 

You can say that all you want, but that doesn't make it so, and I doubt you have the appropriate education or training to make the psychiatric diagnoses you have made in this thread..  Two responses have already explained that "mental distress" does not, without more, invalidate a will.  While I wrote in my prior responses that you'd need to have a local attorney review the text messages, I agree with the others that they do not appear to be sufficient to invalidate the will for lack of mental capacity.

 

 

13 hours ago, tmo1987 said:

If anyone can provide an estimate of attorneys fees please send a message to this account.

 

I'd estimate in the range of $25-50k, but there's no way to know for sure without consulting with some local attorneys.

 

 

11 hours ago, Tax_Counsel said:

If he could do those 3 basic things when he signed the will then you won't get the will invalidated because of his mental state.

 

Moreover, as the quotes from the case indicate, the existence of mental capacity will be presumed, and the OP will have the burden of proving that the deceased was incapable of doing one or more of the listed things.  IMO, the quoted messages don't even come close.

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