Dear Quentin,
My wife had a cousin, “Bob,” who was married and had no children. He told her that he and his wife, “Mary,” had made new wills, prepared by an attorney, and that he had made sure that if he died first, Mary would state that my wife would inherit part of their estate.
Here is what happened: Bob’s estate, which was worth several million dollars, passed to Mary after he died. We thought everything was in order so that when Mary passed away, part of her and Bob’s estate would go to my wife. That didn’t happen.
Mary was in her nineties when Bob passed away. She moved into an assisted-living facility, leaving her house vacant. My wife and Mary, who was then 93 years old, had frequent telephone conversations about her health and welfare.
She was pressured to change her will
One day, out of the blue, Mary called my wife and stated that the facility she was living in was pressuring her to change her will and to leave all of her estate to the facility’s trust fund, leaving nothing to her or her late husband’s families.
She asked my wife what she thought she should do. My wife told her that Bob wouldn’t approve of her changing her will, as he had stated that he wanted their estate to go to their distant family members. Later, we called the facility she was living in to inquire about her welfare.
We were told Mary died two months ago. We asked why her family wasn’t notified and were told we would have to talk to her attorney. When we contacted the attorney, we were told that the attorney had attempted to call family members, but none of the numbers worked.
Nursing home received her millions
Mary had the correct phone number for my wife. We asked what was going to happen to Mary’s estate, and the attorney stated she had been granted power of attorney for Mary and had helped her write a new will that left everything to the facility’s trust fund.
We believe Mary was under duress when she changed her will and feel sure there was criminal intent in the way things happened. We contacted the police department in the town where Mary died and filed an elder-abuse case, which the district attorney wouldn’t take.
Unfortunately, Mary’s house had been sold a month before she passed away. We believe that the trust fund and attorney worked together to steal the estate, leaving nothing to family members, and that it’s probably not the first time this has played out involving these people.
Feeling Duped in Texas
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“One reason people act so brazenly is because they are betting on your lack of knowledge about the legal system.”
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Dear Duped,
The red flag was the phone call from Mary, alerting your wife to the fact that the management of the facility wanted her to change her will. In an ideal world, you would have called a lawyer then. In an even more ideal world, Bob would have set up a trust before he died.
It’s easy to believe that people who own and run a nursing home or assisted-living facility will respect their duty of care over their clients and patients. They benefit from a halo effect, perhaps because we believe kind, honorable people choose this work as a vocation.
But there are, of course, many bad actors in this industry. Just one example: This nursing home in New York illegally diverted millions of dollars of Medicare and Medicaid funds and covered up reports of sexual assault while its residents lived in squalid and unsafe conditions.
It seems inconceivable that an attorney would cooperate in such a scheme and risk losing their license, unless they too were somehow benefiting. One reason people act so brazenly is because they are betting on your lack of knowledge about the legal system.
Hire an elder-care attorney
Texas law does allow you to challenge a will that was made under duress or undue influence, particularly in a case such as this, where the person with power of attorney and the beneficiary represent the nursing-home facility upon which your cousin’s wife was entirely dependent.
At first glance, you have a very strong case, and you should not allow your experience with the district attorney’s office to deter you. Another thing bad actors are counting on: In Texas, after a will has been probated, there is a two-year statute of limitations to contest it.
“If you believe that there are grounds to contest a will, it’s crucial to act quickly and seek the guidance of an experienced attorney,” says the law firm Texas Probate Litigation. “But contesting or defending a will in Texas is not for the faint of heart. It’s a complex process.”
You’re already feeling helpless and have a statute of limitations hanging over your head. Challenging a will is time-consuming, stressful and sometimes expensive, and you will need to collect paperwork, bank records, a copy of the will and circumstantial evidence.
“One reason people act so brazenly is because they are betting on your lack of knowledge about the legal system. Another thing: After a will has been probated, there is a two-year statute of limitations in Texas to contest it. ”
Talk to an elder-care attorney and explain your case. Some will take your case without a retainer if they believe they have a good chance of winning. The Texas Legal Services Center, the Volunteer Legal Services Free Legal Clinics and others offer services for eligible individuals.
The good news: Your wife is classified as an “interested person,” typically an heir or beneficiary, and as such has the right to contest this will. Don’t allow the brazen actions of this facility or their attorney to deter you. A nursing home “trust fund”? That is immediately suspicious.
Depressingly, rates of elder abuse are high in institutions such as nursing homes and long-term care facilities, according to this report by the World Health Organization. “Abuse of older people is predicted to increase as many countries are experiencing rapidly aging populations,” it says.
Mary was isolated in this nursing home and, rather than being a safe place, she was taken advantage of. Texas, like other states, has a hotline you can call if you suspect an elderly relative is being abused, physically, emotionally, verbally, sexually or financially.
Questions to prove undue influence
“Demonstrating the presence of undue influence may involve a variety of factors,” according to the Johnson Firm, a law firm based in Texas. “For instance, did the person leave a bequest that seems unnaturally generous to someone in a position of influence?” Yes.
“Was a beneficiary a fiduciary or trusted advisor to the deceased?” Yes. “Were the expected beneficiaries entirely cut out of the estate?” Yes. “Was the testator in a compromised position or weakened mental capacity of any kind, making them susceptible to influence?” Yes.
“Disputing the validity of a will based upon undue influence begins by filing a lawsuit,” the firm adds. ”The case will typically be assigned to a Texas probate Judge depending upon the county in which the case arises. Will disputes may be heard by a Judge or jury in some instances.”
As you say, if they did it once, they will probably do it again, and they have probably done it in the past. Elderly patients’ estates should not be treated like ATMs by caregivers. There are a lot of good, honest and decent people in this industry, but Mary’s experience gives them a bad name.
Related: ‘I’m 60 and looking to retire’: My brother was released from jail and wants to buy back our parents’ foreclosed home. Should I help him?
The Moneyist regrets he cannot reply to questions individually.
Previous columns by Quentin Fottrell:
My mother-in-law will leave her house to her five grandchildren rather than her two sons. But her elder son won’t move out. Is this a bad sign?
My husband and I signed a postnuptial. Will I be able to keep two houses that I bought during our marriage — now we’re headed for divorce?
I’ve paid rent to my boyfriend since 2012 — and helped raise his child. He’s making $ 200,000 on the sale of his home. Am I entitled to half?
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