My mother has a will in place and I was named her executed

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My mother has a will in place and I was named her executed

One of my brothers wants to change the will
by forcing my mother to do a new will to leave
all her assets to him and his wife. Since they
have never hold a job in their life they have
been supported by my mother both if them plus
their two kids. They want to take over since my
mother has dementia and she turned 86
I need your help

Asked on April 8, 2018 under Estate Planning, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

1) Based on what you write, if she does change the will, there may be grounds to challenge it later (invalidating the revised or new will, so the old will remains in effect). There are three possible grounds for this, based on what you write:
a) Incompetence: only mentally competent persons can make or change a will. If you could show by medical evidence (e.g. the testimony of examining or treating doctors) that due to dementia your mother was not mentally competent, any new or revised will made while incompetent would be invalid.
b) Duress or coercion: if your brother or his wife use threats to make your mother change her will, that would make the will invalid if you can prove that.
c) Undue influence: similar to the above, but less about specific threats and more about exercising excessive influence over your mother by having substantial control over her life (they live with her; do they also control her communications or access to other other people?). If you can show that they used a position of significant power to cause her to change her will, that may invalidate it.
2) You may wish to bring a legal action to have your mother declared incompetent if you feel she is and that your brother is taking advantage of her, and have someone (e.g. yourself) appointed her legal guardian. To explore this option, consult with an elder law attorney.


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