Original will was between my mom & dad in the 1960's. I have taken care of her ever since my dad passed in the 1980's. She did not drive & would not have been able to live in their home in the country w/o me. 16 yrs ago she would entered a nursing home after a stroke if I was not there to take care of her. 5 yrs ago she needed 24/7 care. I was never paid for any thing I did. She had a new will made out naming me as only beneficiary and explaining why. My only sibling is contesting & according to ever attorney I spoke to, the new will is invalid because the other one was a contract.
Do I have a case? My mom could have received help from the state & I could have been paid as a care provider but my mom did not want to do that. She wanted me to be able to live in the home as long as I wanted to & the property to stay in the family.
Thank you
There are distinct signatory issues between the two. Wills are signed by whoever made them - husband, wife individually or collectively. They are notarized and witnessed, but those signatures don't make the witnesses or notaries party to a contract. They merely ATTEST to the fact that they've witnessed the testator/testatrix's (parties who made the will and expressed their intents for disposition of their assets) execution of the Will.
Contracts, on the other hand, identify in the first paragraph the individuals or entities who/which are entering into the contract, and each signs, individually if they're individual parties or by an authorized corporate officer if they're corporate entities. Contracts are also notarized and witnessed.
I really can't understand how a will can be a contract. UNLESS the explanation of why you're being made a beneficiary contains terms such as compensation for care. Did you sign the will in any capacity? Who drafted the second will? Is there a provision revoking any and all previous Wills?
Still, a will and a contract each serve different purposes. This just doesn't make any sense at all.
There's a lot of analysis that could be done, but I think this is the jist of the heir issue:
"The terms of the wills require that the after the death of either of them, the residue of probate assets is to be devised and bequeathed to the surviving spouse, and upon the death of the surviving spouse, the residue of the surviving spouse’s estate is to be devised and bequeathed to their sons."
Using standard contractual language, anything to the contrary notwithstanding, this clause seems to disinherit you entirely. The only consideration might be that you weren't born when that will was made.
It does state "sons" - are there additional brothers involved even if they aren't contesting the subsequent Will?
I took a quick look at the statutory citations, but I wouldn't feel comfortable commenting other than on a cursory basis. Based on some of the language, I think this is something that needs to be researched by an experienced Iowa attorney.
However, this is one of the strangest wills I've seen; there were definitely some things desired to be accomplished at the time, but I suspect you'll never know what your parents' intents were.
I would think, briefly and w/o going into a more in depth analysis, that if you wanted to challenge the will, and if you still seek an opinion from a qualified attorney, you need one who's familiar not only with estate planning but with contractual law and contractual challenges....someone from a well qualified, firm with very, very experienced attorneys. This isn't a matter for a solo practitioner of elder law - it's not necessarily even elder law.
It is unfortunate that there are these conflicts after your mother's death. I do think though that when she executed the new Will after your father's death, she was in fact breaking if not challenging the terms of the original Will. It's also unfortunate that such a provision was ever included - it's very binding.
As for "But I feel obligated to uphold my dads wishes" -- I think if your dad could see you now, he would change his mind. Like you said, circumstances change. I also agree with you - I don't know why people think everything has to be equal.
Thank you & take care
"The terms of the wills require that the after the death of either of them, the residue of probate assets is to be devised and bequeathed to the surviving spouse, and upon the death of the surviving spouse, the residue of the surviving spouse’s estate is to be devised and bequeathed to their sons."
NO sons -- that is copied and pasted from a link. Go back and read my first answer. I also mentioned in another post to rainmom. I'm sorry it was not clear - I thought it was.
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