What can I do if I think that my brother has influenced my elderly father to change his Will?

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What can I do if I think that my brother has influenced my elderly father to change his Will?

My 87 year old mother recently had back surgery and needed additional care. He was in rehab for 2 months but his mind has not been the same since. My brother and his wife, who does not work, offered to come and stay with dad. At first, he stated that they didn’t expect to be paid for it, it then changed to a monthly caretaker paycheck monthly, plus any additional expenses. After 4 days of being with my brother, my father now wants to change his Will. His living Trust had excluded my brother for certain things due to a lifelong history of taking advantage of my mom’s finances. Now, after only days of being at my brother’s home, dad is wanting to rewrite the Trust that he’s had for 4 years that was executed when his mind was clear. Do we have any recourse? I wish my dad would spend every dime on himself before he passes; it would suit me just fine but I’m very afraid my brother is going to take everything he has before then. My dad and I were close, very close for 58 years and yet in just 4 days it’s like he completely changed. I keep telling myself it’s just his mental state right now due to his falling.

Asked on December 3, 2016 under Estate Planning, North Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

1) As to a will, you can challenge it based on a reasonable belief that it was procured by "undue influence" (using power over the testator, or person making the will), coercion/duress, or fraud, *but* you can only do so after your father passes, when the will is probated. Wills have no effect until death, and can be changed at any time until then; therefore it is not ready "ripe" to be challenged, since a will is essentially a theoretical instrument until death, and the courts only deal with actual conflicts or issues, not ones that have not yet arise and may not arise.
2) If you father is of sound mind, he has the right to do anything he likes wth is assets, so if he is mentally competent and chooses to give/spend/pay/etc. money to or on your brother, that is legal and his choice.
3) If you believe that your father is not mentally competent at this time (which would also be grounds to challenge a will later--if it was made or changed when the testator was not competent to do so)--and in particular, if you believe he is being taken advantage of--you can bring a legal action in chancery court (a part or division of county  court) to have him declared legally incompetent and a guardian, possibly yourself, appointed to manage his affairs. You will need medical evidence of incompetence, such as from treating or examining physicians, and should also have evidence of how your brother is taking advantage. If you wish to consider or pursue this option, consult with an elder law attorney: doing this is not a simple matter, and you will need legal help.


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