What can be about a Will and subsequent business transaction if one of the parties is elderly and not competent?

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What can be about a Will and subsequent business transaction if one of the parties is elderly and not competent?

Right after my mother’s Will was closed, my sister had my father dad give her the house in a new Will (interrorem clause added). She then went to the bank and got a home improvement loan using the house as collateral (dad co-sign the note). Is that legal? Suppose the Will had been declared invalid due to his Alzheimers? This happened a year ago.  Is it too late to do anything?

Asked on November 29, 2010 under Estate Planning, Kansas

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I am sorry about the loss of your Mother but may I ask because it is unclear: is your Father still alive or did he also pass away?  If he is still alive then the house is not yet your sisters so what he signed at the bank was probably loan he took out "himself."  She has no interest in the property yet.  You have indicated that you believe that your Father may not have been in sound mind to execute the Will.  The time to contest it is when he passes away so if that has not yet happened then you have time.  But may I make a suggestion?  Seek legal help here about someone being appointed as conservator of your Father so that your sister does not take advantage any longer.  Ask the attorney about establishing that he was not fit to execute the Will a year ago now rather than waiting until he passes away.  This way you avoid the in terrorem clause.  Good luck. 


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