Thursday, January 8, 2009

Stand Against Adversity


Dear Aunt B,

I saw your web page and would appreciate the opportunity to ask you for advice.
James

I am 59, a college professor, and two years ago, I remarried. My wife and I have just had a new baby this past month. (I have no other children). My parents and sister were not happy about my decision to remarry, nor happy about the baby-- in part, because my parents had hoped I would return to my home town if and when I retired to help take care of them, but mostly because my wife is Vietnamese, even in light of the fact she is educated, and has an extremely kind personality. My sister, two years younger than I, has not been that financially responsible, to put it mildly, for the past many years; she has accumulated a credit card debt of over $30,000, and a few years ago, she had to borrow $40,000 on her house to pay off a similar credit card debt accumulated in the same manner as the present one she has re-accumulated. She earns about $1000 a month in a part time job, collects $1300 a month in alimony and spends a large part of her time taking care of her pet cats. My father is ill, so my sister helps my parents by taking them to the doctor as needed. Somehow, in the course of things, my sister was fairly recently granted "power of attorney" over my parents' financial affairs, without my knowledge, even though my mother is well and in sound mind. A few years ago, my mother paid for the building of an additional room on my sister's house at the cost of about $47,000 so that my sister's cats wouldn't have to stay in the basement. I can understand, at least to some extent how such a financial mistake could have occurred, but I find it difficult to excuse my sister for going along with it and accepting my parents' money. I also learned that my sister and parents went to a lawyer, again without my knowledge, in regard to my parents' "will". Their "will" stated that their CD's and house were ultimately to be divided equally between my sister and myself. My sister (and mother) informed the lawyer they didn't want my new wife to inherit anything from my family, particularly the house in the event I should die before my wife (which I obviously will). Consequently, the original will was discarded, and the house was legally signed over to my sister and put in her name only, at my exclusion or my knowledge. My parents' CD's remain in both my name and sister's name, although I'm not even sure about that, given the secrecy of recent events. I would like to ask if you think all of this is fair and what I should do about it. I feel a man has every right to get married again. I also feel that it was unfair, if not illegal, that my sister conspired to have my parents' house signed over to her at my exclusion. I would appreciate your opinion and advice on this matter, and thank you in advance for your kind assistance.


Dear Re-Married,

I am going to answer you in three parts, just for the simple reason that it is easier. First – I invite you to re-read this post from Ask Aunt B http://goauntb.blogspot.com/2008/12/its-just-another-lump.html as it does have very valid information regarding legalities. Second – I would like to validate your feelings regarding your new wife. You do have every right to re-marry, and whomever you choose. I am glad to hear that you are not afraid to stand up for your wife, and to fight for the life that you deserve and the respect that you and your wife are entitled to. Third – However (and don’t we love this word) whatever is happening in your life, and however your parents feel about it, really has no bearing legally on why they change their will. Your sister’s financial disasters have no bearing legally on why they change their will. You have said yourself that your mother is well and sound of mind, so really there is nothing you can do if they change their will other than choose to accept it, or be bitter about it. So. The questions are: Do we feel that this is fair? – Given the reasons you have issued about being left out of the will, no, I do not. However (again) I do not know the full story. But given your side, no i do not. What should you do about it – I would invite you to talk to your parents and your sister and explain that you are HURT. Not so much about why you feel your sister is not a good candidate to be the executor, not that they refuse to leave anything to you in case your wife gets it... but that you are HURT that they cannot accept you living your life in happiness. That you are HURT that they went behind your back when you have done nothing to deserve that kind of treatment. That you are HURT that even if they do not respect or acknowledge your choices, that they cut off the lines of communication with you and that wasn’t what you wanted. And finally that you are HURT about the decisions they have recently made, however you are not going to divorce your wife or leave your child because of their behavior. And if this is the deciding factor on the writing of their will, then they are in turn HURTING you again by shinning you and their grandchild. Ultimately the choice is theirs as to how they want to assign their estate, and there is pretty much nothing you can do about that (nor should you, it really isn’t any of your business, this is their estate after all). All you can do is try to explain why you are hurt and hope that they make the choice to accept your choices and not “punish” you for them. And, whichever way that goes, you need to figure out how to deal with the outcome, and how to live and move on if your parents don’t budge. You need to figure out if/how this will affect your relationship with them and your sister (not being equal in a will) and how you are going to be around them. This is not going to be easy for you, but a man of 59 years would already know this, and I am sure you have gained enough experience in life to know how to use tact. I hope that you and your family can mend this rift, regardless of the estate/will decision, you only have one family and once they are gone that’s it. Memories are great, but not as good as life. Only you can choose which way you are going to go here.

Good luck with everything,


~Xmichra.





Dear Re-Married,

Dirty deeds done dirt cheap, eh? The first thing that comes to mind will be that you announce, loud and proud that you will, in fact, *Contest that Will upon the death of your parents. You let it be known that it is underhanded in the way they have proceeded, fed upon your parents displeasure in your re-marriage, done underhandedly in order to change things in her favor. You let her know, specifically your sister, that when you do contest that will, it will cost your sister a tidy sum, that and in itself will talk to her.

You need to stand firm in your rights and within your marriage. I can not stress this enough and **I will address it again in a moment.You would think they'd be happy for you. I find it real tawdry and offensive that because your wife is Vietnamese, they would treat you as they have. Shallow thinking, shallow minds. And when they die and you two are arguing, in court over their and your rightful inheritance, all this distasteful thinking will come out.

I do believe, the courts will be sympathetic to your situation on the simple grounds of what's commonly known as racist behavior. It speaks for itself.
Ask them now, while you have the opportunity, "What would our Lord think of such detestable behavior?"

I for one, feel that your sister has been very pertinent in your parents behavior, from start to finish. I am usually right and my feelings are that you need to go to her first and state what I said at the start of this post. As well, you let her know that you are aware of her dirty dealings and it's really ugly. One day, I firmly believe, she will have to stand before God and she will be held accountable. So will your parents and you have a chance to change things, at least for them.

I'll say it a thousand times but "God don't like ugly." In the event they are not believers, I want to point out one thing; what if they are wrong? They'll be wrong a long time. Arrogance is ugly too and those that feel they can treat people any kind of way and get away with it will soon meet my friend,
Mz. Karma Bitchslap™

**You cherish your vows as God intended them and stand firm in your marriage. Stand against adversity, any adversity. Traditional wedding vows state;

Do you, __ take __ to be your (wife/husband)? Do you promise to love, honor, cherish and protect her/him, forsaking all others and holding only unto her/him?" ("I do")

"I __ , take thee __ , to be my (wife/husband) to have and to hold, in sickness and in health, for richer or for poorer, and I promise my love to you.."

"With this ring, I thee wed; all my love, I do thee give."


Now, I don't know if you are Christian or Interfaith. I don't know if you went to a Judge and had a civil ceremony but most people have a similar exchange of vows. They often times speak the words without hearing them. I hope that is not you. Stand firm with your wife and child, they are your family now.


Keeping It Real,

Aunt Babz

P.S. Print this letter out and mail it to them. Let them know that the world is watching and waiting. Will they do the right thing? Will they look at their behavior? Will they realize the key to Christianity lies in treating others, not in judgment but treating them as Christ would...that includes the treatment of your wife. WWJD?


Hello James,
After reading your letter, I conclude that I am in agreement that both your parents and your sister do not approve, accept, or like, your marriage to your new wife. Instead of getting tangled up in what you see as unfair, (their attempts at secrecy and financial control), try to focus on the relevant issue, which is, that your family will act, accordingly, to how they feel about your new life, be that fair or unfair is not the issue.
It's likely that your family feels discarded, your having found someone so meaningful to you. Do not expect their feelings towards your new wife to change, no matter what you try to explain and no matter how nice you behave towards them. My guess is that they would like it better if you had no one to rely on or to share your life with, other than them.( how sad it is that they see your happiness as a threat to their relationship with you)-
My advice to you is that you assure them that you still love them, both your sister and the both of your parents. This may not change their mind about your new wife, but it is the kind thing to do, and by being kind and considerate, one can hope for better relations with them. I advise you also, to seek legal help immediately, to make certain your financial security is protected and they are not going out of legal bounds or leaving you illegally out of a will. Please don't forget, that if you do not protect yourself, you may be injured, financially. Do not leave yourself vulnerable to them merely because of an assurance that they are blood relatives to you.

I hope this helps! Good luck, and as always.

Thank you for contacting,

SidellSez!



*Contesting A Will


First, we must ask, what is contesting a will or a trust? Basically, contesting a will or a trust means that you are challenging the validity of the will or trust document.

It is similar to the flag that is thrown in a pro football game after a call by the referee.

In this case, the will or trust is assumed valid by the probate court judge. You are throwing out the flag and contesting the validity of
the document in question.

Contesting a will or trust usually rests on one or
two of the following factors: undue influence in executing the will
or trust, or that the person executing the will or trust lacked
mental capacity to execute the will or trust at the time it was
executed.

What is undue influence in executing a will or trust?

Here is the definition of undue influence:

Undue Influence - Influence of another that destroys the freedom of a testator or donor and creates a ground for nullifying a will or invalidating a future gift. The exercise of undue influence is suggested by excessive insistence, superiority of will or mind, the relationship of the parties or pressure on the donor or testator by any other means to do what he is unable, practically, to refuse.

So, if you can prove that the person who executed the will or trust was acting with undue influence, that is, was acting under pressure that was unable to refuse, you may have a basis to claim undue influence. This would give you one reason to contest a will or trust.

The other method to contest a will or trust is that there was a lack of testamentary capacity.

Testamentary capacity is the legal ability to make a will. In California,
for example, Probate Code Section 812 says, in part, that a person lacks the capacity to make a decision unless the person has the ability to commnicate verbally, or by any other means, the decision, and to understand and appreciate,
to the extent relevant, all of the following:

(a) The rights, duties, and responsibilities created by, or
affected by the decision.

(b) The probable consequences for the decision maker and, where
appropriate, the persons affected by the decision.

(c) The significant risks, benefits, and reasonable alternatives
involved in the decision.

So, here, to contest a will or trust due to lack or testamentary capacity, you would have to show all three elements.

This is a tough case but is not impossible. In my early legal career, I was able to obtain a $1,000,000 plus settlement for a client using the above elements.

You can find more information about wills or trusts: Click Here.

Good luck and until next time,

Phil Craig

Phil Craig is a licensed attorney and entrepreneur. He started practicing law at age 25 in 1979. He does not take on any more clients, but is advisor to some of the biggest names in the internet world. He shares his knowledge gained over the last 25 years at his Living Trust Secrets newsletter site: click here: http://www.LivingTrustSecrets.com

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1 comment:

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