Dear Quentin,
My mother created a trust and a will in 2013, creating the distribution of equal shares of her substantial estate among myself and my three siblings upon her death. Her estate includes financial accounts and several properties.
Two years ago, in 2019, she was diagnosed with Alzheimer’s disease. Since that time, it’s been chaos dealing with litigation related to my siblings. After suffering elder abuse by two siblings, she moved in with me a year ago, and is now under professional guardianship/conservatorship.
None of my siblings help with her care. One of my siblings has cut off communication with our mother altogether. Another one visits regularly, but it’s really spying on behalf of the other two, one of whom moved away 46 years ago as a teenager and visited once, prior to our mom’s diagnosis.
“ ‘One of my siblings has cut off communications with our mother altogether. Another one visits regularly, but it’s really spying on behalf of the other two.’ ”
Our mother is still able to state her preferences, and knows who we are. She can’t change the trust, according to her attorney, but she can change her will.
Due to my siblings’ behavior toward her, she has stated consistently that they should receive “not a penny” from her estate. She would need help to fulfill this desire.
I’m torn. Should I help her? I don’t blame her for how she feels. It seems obvious what they’re really after is her estate. For nearly a year they wouldn’t let me near her, knowing we’ve always been close. They also conspired to have me written out of her will. Fortunately, her attorney recognized their undue influence and refused to do so.
I estimate she has already spent $ 100,000 in attorney and guardianship fees, protecting herself from them.
What should I do? The whole thing is heartbreaking.
The Remaining Child
You can email The Moneyist with any financial and ethical questions related to coronavirus at qfottrell@marketwatch.com, and follow Quentin Fottrell on Twitter.
Dear Remaining,
What you propose is not impossible, but you are playing a high-stakes game. Just know that you would be leaving yourself open to further litigation and accusations that you are putting undue influence on your mother — something you have alleged your siblings have attempted to do in the past. I’m not doubting your intent or your story. I’m merely giving you a heads up on what turmoil may lie ahead. That said, what you suggest is not impossible, despite your mother’s diagnosis.
If your mother wishes to change her will and you want to help her with that, you must first show that your mother has “testamentary capacity” to make such changes. She must understand what it means and the effect it will have — in this case, disinheriting her other legal heirs. She must also understand the full nature of her assets and their value. Your mother would likely also have to provide a reason for making these changes. It may not be easy.
You don’t give details on the nature of the current litigation, but I assume your siblings have made efforts to wrestle control of your mother’s trust and estate, and have challenged the existing conservatorship. This is not an uncommon sequence of events when siblings are at war, and when an ailing parent owns a sizable estate. To prove testamentary capacity, you will have to access medical records and enlist the help of doctors, nurses, psychiatrists and/or neurologists.
Legal precedent
Every case is unique, but there is legal precedent of a family member who unsuccessfully tried to overturn a beneficiary posthumously. Timothy Gallagher, an attorney with Reminger Attorneys at Law, cited the case of Webb v. Anderson Children Trust, et al., 2020, where a sister sued her brother over their mother’s individual retirement account (IRA) beneficiary designation. The sister alleged their mother lacked the capacity to make changes due to a recent dementia diagnosis.
In this case, the brother had their mother take two separate mental-status exams. “The trial court found that the sister did not prove the mother lacked capacity to make the change to the IRA beneficiaries,” Gallagher writes. “The mere fact of a dementia diagnosis was not enough to show lack of capacity, and the testimony of the financial advisor was [that] the mother was strong and confident in 2009 when she made the change.”
You and your mother will have to weigh how strongly she feels about disinheriting her children, taking her mental and emotional state into account. You will be inviting more conflict into your life. Such court cases often linger for years, and can usurp hundreds of thousands of dollars — if not more — in legal fees.
I clearly don’t know all the facts in this case or both sides of the story. With that in mind and in good faith, I urge you to proceed meticulously and cautiously.
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