My mother updated her will over a year ago awarding my sister a life estate of the family home and 5 acres. My son who is the only grandchil...

Question

My mother updated her will over a year ago awarding my sister a life estate of the family home and 5 acres. My son who is the only grandchild is to inherit it upon my sister's death. She set aside $20,000 to pay the taxes and insurance. Our mom recently passed away and my sister who has been a drug addict for 15-20 years wants to contest the will on the grounds that mama was not in her right mind when she updated the will and the will my sister wants to use is the previous will (which I believe she typed up herself and took mama to the bank for notary and witnesses) left the house and land to be deeded to her. The previous will did not specify how $40,000 of mama's estate was to be distributed. Mama always stated she did not want the house to be sold and wanted to insure my sister had a place to live because she would have been homeless had she not lived with our mom. She also names her grandson as executor and he is to make sure the taxes and insurance are paid. She was also afraid if the insurance was not paid my sister would accidentally set it on fire because she sleeps with a lit cigarette. If the will had not been changed my sister's husband who is an ex-con who recently spent time in jail on another charge (cocaine and dui) could have been in line to inherit the family home. My mom suffered from dementia but knew what she was doing when she updated her will and did so at a reputable attorney's office. Does my sister have a legal right to contest?

Answer

A person with dementia may or may not have capacity to write a will. Your sister should immediately hire an experienced lawyer to protect her interests. Hopefully her grandson has already also retained good counsel.

Answer

Anyone can contest a will if they have legal grounds. Telling us that your mother has dementia does not tell us much. If her dementia was bad, then her updates might be invalid if she lacked the mental capacity. However, if her doctor felt that she was competent and the lawyer who did the updates believed that she was okay, then maybe the will would hold up in court.

Even if the will is tossed out, its not going to revive the old will. What would happen is that any property would pass via the intestacy laws as your Mother would have been treated as if she had no valid will. But without knowing mroe about her situation and looking at the documents, its hard to say.

I hope the executor under the updated will has an attorney. If the sister is a drug addict, its not likely that she is going to be able to afford an attorney for a caveat challenge to the will. Litigation is hideously expensive and most lawyers will not take this type of case on a contingency fee. Unless your sister has a really good argument and is going to walk away with a good sized chunk of money, a lawyer will not want to get involved unless your sister can pay. Howeever, from what you have stated, unless there are other significant assets, it sounds like your sister would be better off with the life estate.