Will leaving estate to me by my mom was rendered invalid due to original will being a contract. Do I have a claim for taking care of mom?

Can you explain what made the first will a contract vs being a regular will. Also since your father has already passed, did the first will have beneficiaries after him?

I've never heard of a will being interpreted as a contract. Did the attorneys tell you why it was a will and not a contract?

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.

Every lawyer I've contacted since my only sibling decided to contest the will has stated that its a contractual will and takes presedence. Its state of IA.

Here is the wording "This being a Joint will, the same is *binding* on each of us and our successors, and the consideration for the making of this will is the promise and the execution of this will to the other. "

It also states the estate goes to the survivor -- I can't see anywhere where it states what the survivor should do with the property.

It does state what should be done in the event they both die at the same time

it states property should be divided between my brother & I equally if they both pass away at the same time.. It does not state anywhere what the survivor shoud do with the property when they pass

I found this link & I don't see any wording such as

"the survivor shall neither sell nor change the will as to this home farm." or anything like this - " After the death of the first of us to die, under no circumstances can the terms and conditions of the Last Will and Testament of either of us be changed in any respect by the survivor."

SEVENTH My husband, Royal Meyer [my wife, Norma Jean Meyer] and I have executed our Wills contemporaneously and in accordance with a common plan. The provisions of each will provide for reciprocal and other bequests that are made in fulfillment of this purpose. In consideration of such common plan we waive the right during our joint lives to alter or revoke this Will, in whole or in part, by Codicil or otherwise, without first giving notice in writing to the other. After the death of the first of us to die, under no circumstances can the terms and conditions of the Last Will and Testament of either of us be changed in any respect by the survivor.
Emphasis added.
The requisite intent is indicated in these two clauses of the couple’s wills, concerning how the residual property is to be disposed in the event that one predeceases the other. 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. Focusing specifically on the language contained in the provision of the wills entitled SEVENTH, this language has the effect of providing for the binding disposition of the surviving spouse’s residual property in a certain way, and therefore constitutes intent that the wills are to be construed as contractual. See Matter of Prehoda's Estate, 309 N.W.2d 516, (Iowa App.1981). Furthermore, the wills specifically state that the wills were executed contemporaneously and with a common plan. In consideration of the “common plan” they waived the rights to alter or revoke the wills once the other died.

http://itrl.idr.iowa.gov/mx/hm.asp?id=99700161

The joint will was made out in the 1960's . That was over 50 yrs ago but attorneys say that is the will which will be probated because it is a contractual will and the newer ones are invalid. Reason given - it was a joint and contractual will & they also mentioned IA's anti lapse statue which I looked up but I don't understand how that applies. Any help will be greatly appreciated. thank you

No, the new will explains why she is leaving her estate to me & excluding my bro. For taking care of her all those years w/o any compensation and because I had the greater financial need. It's not the wording of the new will - it is the fact that the original will is a joint & contractual will

No I didn't sign the will. I thought I had a competent attorney. The attorney & his wife signed it. The attornies are saying that the first will is takes precedence.

The attorney who wrote the first will also probated the estate when my dad passed. I have no idea why probate was needed being the property was owned jointly as well as their bank account. No matter. My mom had a new will drafted a few weeks after my dad passed naming me as executor by the same attorney. Why bother writing up a new will if the old was valid. He could have simply wrote a codicil to the original one naming me executor. My mom didn't change anything at that time. She wrote new will a couple years ago naming me as beneficiary as well as executor. They are saying I won't executor either.

this is IA anti lapse statue

I don't see how it applies

https://coolice.legis.iowa.gov/Cool-ICE/default.asp?category=billinfo&service=IowaCode&ga=83&input=633.273

https://www.calt.iastate.edu/article/iowa-anti-lapse-statute-construed

Is there anyone familiar with this ? Any attorneys or law student or anyone who knows contract law ?

Okay, if I am understanding the situation - your parents made a joint will in effect guaranteeing that neither could change what they had agreed to, with each other at the time, would happen with their estate. I had no idea such a thing was possible - and neither had my father or he would have done it with my mother. Looking at it from my own parents situation. My parents wills left each other everything. Then when the survivor passed everything was to go to their three children equally. My mother has been unhappy with my oldest brother for years. My father was aware of this but he felt differently and on a number of occasions - in my presence, made her promise not to tinker with the will - and she did promise. Sure enough three months after my dad passed mom changed the will to give her church a cut. Then a short time later she got mad at my brother again and made plans to change the will to cut my brother out. I talked to her and reminded her of her promise and how important it was to my father that all three children were treated equally and was able to stop her. Since then mom has changed her will again - this time to take her church back out when they made her mad. And on several more occasions she has made plans to remove my brother but again, I have been able to talk her out of it. Sooo - could your situation be something similar? That it was important to your father that your mother not be able to change what they had agreed upon, down the road? Don't get me wrong - I have no comment about what's right or wrong, who's "derserving" and who isn't. Im just guessing at the motivation behind such a drastic step to ensure a will remain unchanged.

@Rainmom Give a Hug --- NO, the only similarity is the fact it was a contractual will but if you read all my updates in the answer section the will does not state what the survivor should do with their estate when they pass. My mom had been wanting to change the will for years but I did not think I should be compensated for taking care of my own mother. My Dad has been gone for over 30 years & not once did he talk about the will. They made a will because that is what you do. I *extremely* doubt my Dad knew it was that type of will. He only had an 8th grade education. My mom didn't know & she did not lack in intelligence. I'm college educated & quite knowledgeable in regards to the law & I had never heard of this. The lawyer who prepared the new will was highly recommended & a former county attorney & he didn't know. I've had friends tell me 20 years I should be compensated. I never asked her to do that but I realize now I was being a martyr & that is not an easy thing to say . Thank you for sharing but personally & regardless of my personal situation, I believe a person should have the right to do what they wish with their property. Circumstances do change & so don't people. I'm sure you would not be saying this if your brother had done something terrible to your mom.

@Rainmom - one attorney told me the reason why some married couples do this is because they are afraid the spouse is going to remarry & leave their joint property to their new spouse or kids. I don't think my folks were worried about that. My Dad passed unexpectedly. My mom never looked at another man. My brother did not help out & he easily could have. He borrowed a large sum of money after Dad passed & never paid a penny back. There was never anything in writing. My mom was on a fixed income & sure could have used that money. There was a period of time I could not drive due to an eye problem. We had to hire someone. He could have but he didn't. He said no. I could go on and on and on . I'm not looking for sympathy. The law is what it is . I want to know if anyone had put a claim in for compensation & won. I don't have any income & I don't want to pay an attorney if there is not a good chance of winning. I would need 2 attorneys. One for the estate & one as a personal representative. The will also has to do with the antilapse statue which I do not understand. Thanks again for sharing

If your brother had any decency he would sign his portion over to you in acknowledgement of the care you gave to your parents. As he hasn't, I imagine he will fight any claim you try to bring against the estate tooth and nail, and the fact you had no written caregiving agreement will probably go against you in court. The value of the estate will line the pockets of lawyers, leaving you worse off than if you just accepted things as they are.

@cwillie "leaving you worse off than if you just accepted things as they are. " thats my fear.

Echoes - re-read my last paragraph. I made my comments after I read all your posts - twice - and was trying to understand the meaning of the will as interupted as a contract. Like I said, I had no idea a will could be written in such a way. I don't buy that your dad didn't understand what it meant as the verbage regarding no changes is repeated several times and quite clear - I imagine even to someone with an 8th grade education. I wouldn't even begin to guess why your parents made such a will - but saw an reason why my parents would have made such a will. If you want to know what I think regarding wills in general, siblings who don't help... I think people should be able to make wills however they want - it's their money. I think it's wrong to use a will as a final punishment but if people do that - it's their right and again, their money. I think people who make the enormous sacrifice to take care for an elderly loved one at home should be paid while the care is being given - but know that finances don't always allow for that. I don't think a child or sibling should be punished for not being able to care for a loved one at home as not everyone is cut out for it nor do everyone's circumstances allow for that. Example - I care for my severly disabled adult son at home, it would be impossible to care for my mother in my home as well. I think some siblings/children are plain selfish, greedy and clueless - period. I think wills and the attached assets frequently bring out the worst in people. Back to you - I can certainly see how your parents changing circumstances should have allowed for a change in the will - yes, somehow you should be compensated. As it stands it's looks like you'll get half and your brother should give you his share - if he were to do what's right - in my opinion. Back to me - do I think it's fair my brother will receive an even third? No - I have been doing 90% of what it takes to look after my mother - he has done less than 1%. However - it was very important to my dad that my brother receive an equal share - for some reasons I know and some I can only guess at. But I feel obligated to uphold my dads wishes and also do my best to see my mother keeps the promise she made to my dad. Back to you - I hope some how this will all work out in your favor but if it doesn't I hope you can take some comfort in at least knowing your mom recognized your dedication to her and did try to make a new will to compensate you.

As I think I will take some hits saying a sibling should not be punished for not being able to provide in home care. To clarify - this same sibling should be doing everything they possibly can be doing to help out and support any sibling who is able to provide in home care. As it relates to my own situation - none of us are caring for my mom in our homes. Yet - for going on six years I have been the one doing everything else and my mom being a handful - and having dementia - even that has been beyond difficult. One brother has begun to be a little more helpful in the past eight months. The other brother still does next to nothing. We are all local and both brothers are retired with no children at home. So yes, I know what it feels like to have siblings who don't help.

Thanks for providing the additional information. I now understand why the attorneys have advised as they have.

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.

GA - I believe Echoes is male, thus "sons" is he and his brother. At least that's my guess.

RM, I guess I automatically think posters are female. If Echoes is in fact male, that I think would change the situation.

However, I think the issue of the post goes beyond that and seeks more compensation for caregiving than for equal asset distribution.

In fact, stepping back from the legal complications and just addressing the primary issues in the original post, it would have been better if Echoes' mother drafted a caregiving contract, but it's too late for that now.

@Rainmom You misunderstood. "as the verbage regarding no changes is repeated several times and quite clear" that was copied from a website & I gave a link.

There is only one sentence that makes the will contractual. There is no additional contract, no special wording stating that it can not be revoked by either party & there is no mention in the will in regards to my bro or I inheriting anything unless our parents die at the same time. The issue with the will is the anti-lapse statue.

I'm sorry if you were confused. My parents are not Norma Jean & royal - check the link for yourself

Please refer to my very first answer. I posted the sentence in the will which makes it a "contract" . It's in quotation marks. I added the asterisks. I'll even copy it and paste it again.

Here is the wording "This being a Joint will, the same is *binding* on each of us and our successors, and the consideration for the making of this will is the promise and the execution of this will to the other. "

Contract wills are very common in 2nd marriages also but they usually contain more language & often times I signed contract is attached stating neither party will change their will.

You have a right to your opinion but I don't think my Dad would have wanted my mom to stay all by herself out in the country for next 30 years of her life. She did not drive & was scared to be home alone at night. If it was possible for him to see her, he would be *surprised* to have found her living there. He would not have cared in the least if she sold and moved and/or spent the money on whatever. He wasn't a control freak. He wanted her to have the best life. Had she sold she would not have had to struggle financially. I'm speaking poverty level. I'm sorry my response offended you but you didn't know them.

@ GA - where do you get sons? Gee, I know. They are the sons of norma & royal. I think I clearly stated "I found this link & I don't see any wording such as...." before I posted that info from a link which I also provided. @Rainmom - Did you read my post about not wanting to be compensated? Yes, I changed my mind. I deserve it & that is why she left me the estate. She also stated it in the will & I stated that too.

For clarity.

My first wish is for her current will to be valid but the law is what it is. I also stated that. If wishes were .....

I don't understand the anti lapse statue which I also said.

My original question, before people started asking me about the contract will was in regards to being compensated . Does anyone have any experience to share or any knowledge. One attorney said 50/50. Depends on the judge.

I sense a change of direction - the wind is blowing differently now. I'm glad I didn't put any more time into attempting to help this poster.

@Rainmom - I'm stressed too. I didn't read your posts clearly. I haven't slept & I'm so used to not sleeping cause the last few months my mom was in terrible pain. This all came as a surprise to me. I didn't think for one minute my bro would contest the will but he has a greedy wife. That was a big mistake on my part. They are also lying about stuff & accusing me of things which are not true as they gear up for a legal case. That hurts more than anything. The law is the law but the accusations and lies are another thing. 2 of their sons know their grandma was giving me her property but they suddenly cannot recall the convo. None of my moms wishes are going to fulfilled. Not one single one & that is killing me too.

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

@Garden artist NO NO NO

"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.

Yes, a quick left onto "unfair avenue". And for the record, echoes - I agree with you. That's not my point! To imply that I have any knowledgable opinion contrary to what your father wanted i.e. "He would not want my mom out in the woods alone" well, honestly I'm not following as how you've come to any conclusion regarding my suggesting different, is just wrong. I was merely giving conjecture on the reasons why a contract vs a typical will. I apologize if you think I was implying anything else. I will say your cut/paste from whatever reference muddied the waters - putting quotations does not indicate where the material came from - simply that you were quoting and I think it was fair to assume you were indeed quoting the actual will. Regardless - I'm gonna bow out as this has gone from a question/answer thing to a bit of a rant. Best of luck to you.

And btw - NO my father would not feel differently and I resent your implying that he would - you didn't know my father and your statement is both wrong and offensive. I'm done here.

The last 11 days of her life were spent in ICU or another room in the hospital several hours from home. They kept transferring her. I did not leave. I never went home till the last day. I tried to sleep in a hard chair or on the floor. One nite I got a cot. That was the night I got the virus that my mom had which she got from my bro & his wife. She was on medication which lowered her immune system. They *rarely* visited & they knew not to come when they were sick. I didn't have a change clothes or anything & they did not offer to help me. There were shower facilities. They visited all right but not long enough for me to go home. The night before she passed she begged for hours & hours for me to take her home. I was told I couldn't take her home but they said I could the next day on hospice. I had to go home to make arrangements. My bro & wife were at the hospital but they left shortly after I did & my mom passed alone shortly after. I held hand for 11 days & 10 nights & she was all alone when she died.

....and since I'm on a rant. Do you know what the 2nd thing my bro said after I told him she passed. Am I still in the will ? Mom didn't tell him but she told 2 of his sons. Then he told me he wasn't contributing a dime for a funeral. Later I asked him if his youngest son didn't tell him. She told him about 7 or 8 yrs ago. Surely it didn't come as a surprise. He said yes but he wanted to make sure. Then he asked for a copy & got an attorney. Now, neither of his sons recall the convo with their grandma & my bro has no recollection of that convo with me.

The end

.. and the other son was told numerous over the years by his grandmother.

correction

grandson

@Garden Artist Thanks. That's the odd thing about the will. What I copied & pasted in my first answer was from a website. It is not from my parents will. No where in the very short one page will does it dictate what the survivor should do with property and or estate after they pass. They promise to give everything to one another & the ONLY time my bro & I are mentioned is *if* they both pass at the same time & if they do pass at the same time, the estate is to be divided equally.

I've only had one attorney agree with me. He is not an estate attorney but there is one in his law office. All the other ones I spoke to gave me their opinion - the old will would take precedence, but would not explain why or how they came to that conclusion.

Thanks for the advice. I was looking for estate & trial attorney. Contract law makes sense.