Can a husband change a joint will after the wife dies? 16 Answers as of May 02, 2014

I am guessing it was a joint will but not sure of the legalities. It had both of their names on it and I believe it said after both are dead, then the assets were to be divided equally among the 5 children. I am concerned because some of my brothers, who have chosen not to work, may be trying to curry favor with my elderly father in order to get him to change the will and leave them the house and everything else. This would go against my mother's wishes. My father has had mental problems over the years and still thinks 'people' are getting in the house so I question his mental stability to make a legal decision such as this. Can a change like this be made after my mother's death and against her wishes with my father possibly suffering the effects of mental illness?

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Law Offices of Robert Beatson II | Robert Beatson II
Suggest you talk to an attorney who handles Federal/MD will and estate planning. Information will need to be assembled and carefully reviewed for a proper analysis to determine the viability of the will.
Answer Applies to: Maryland
Replied: 5/2/2014
Durham Jones & Pinegar | Erven Nelson
You need to get a copy of the will and review it with a lawyer. Also, you should look into getting a guardian appointed over your father to make sure that nobody exercises undue influence? Over him to change the will.
Answer Applies to: Nevada
Replied: 5/2/2014
Charles M. Schiff, Attorney at Law
Charles M. Schiff, Attorney at Law | Charles M. Schiff
I cannot be sure what you are referring to as a "joint will". Generally, husband and wife have separate wills. Assuming that father received the entire state of your mother at her death, he has the ability to change his original will. If the document you refer to was in fact a "Joint, Rrevocable Trust", the terms of the Trust would determine whether father can now make changes. It is rare that a surviving spouse would be obligated to retain the terms of his/her original will. Most Wills award property to a surviving spouse and then go on to state what is to happen if the spouse does not survive the Testator. If the spouse survives, as in your situation, the surviving spouse can do whatever he/she wishes to do with the property now belonging to him/her.
Answer Applies to: Minnesota
Replied: 5/2/2014
Ronald K. Nims LLC | Ronald K. Nims
A joint will consists of two wills and a contract between the parties. After the first party dies, there is no one to enforce the contract and the surviving party is free to make a new will. The issue here is whether she had the capacity to make a will. This is generally a difficult challenge, often the beneficiary of the new will was involved in the deceased day-to-day life while the cut off parties sat at a distance un-involved. The question is whether any third parties can testify that the deceased lacked testamentary capacity. The best potential witnesses being the doctors who treated the deceased but also these doctors usually saw a declining elder being assisted by the beneficiary. In my practice, if I have an elderly client who wishes to cut estranged children out of the will, I'll have her be interviewed by a physician and sign the will in her/his presence. And the physician to write a letter to the effect that I examined JA at length today and, in my medical opinion, JA understood that the document she signed was her last will and that she understood the purpose of the last will is to distribute her property after her death and that her last will directed that all her assets would pass to TA to the exclusion of her other children.
Answer Applies to: Ohio
Replied: 5/2/2014
Law Office Of Victor Waid
Law Office Of Victor Waid | Victor Waid
Depends on how the document reads; however, I suggest you obtain the service of a probate lawyer to interpret the document.
Answer Applies to: California
Replied: 5/2/2014
    James Law Group
    James Law Group | Christine James
    It is impossible to say without seeing the document. Wills are generally not joint but trusts can be. You need to show the document to an attorney and get some specific advise.
    Answer Applies to: California
    Replied: 5/2/2014
    Sebby Law Office
    Sebby Law Office | Jayne Sebby
    First, there is no such thing as a "joint will." Each person has to have his or her own will that describes how his or her property should be distributed after his or her death. Second, your father, if he is competent, can change his will at any time. The only thing he can't change is the terms of your mother's will regarding the distribution of her property. For example, if she left your father a life estate in a piece of real estate she owned outright and after his death, directed that you are to inherit the property, your father can't sell the property or leave it to your brother.
    Answer Applies to: Nebraska
    Replied: 5/2/2014
    Law Offices of George H. Shers | George H. Shers
    There is no such thing as a joint Will in California. A Probate Court judge would probably treat it as two separate exactly alike Wills. A person can not force another person to make specific arrangements in their own Will. So your mother can not say in her Will that your father must divide the property equally. But with the proper wording she can get this result; if her Will made how her assets are paid out contingent on his disposing of his assets in a certain way, the she could indirectly control what he does. If your father lacks the mental capacity to prepare a Will or change it, any change would not be binding, but you would need to have a Dr. or some professional to testify as to that and that he would not have any lucid moments. That is difficult to show. It might be best if your father sets up a Trust to pay his needs and then divide the remaining assets equally. But he needs to do that himself. I think you need to speak to a probate attorney in your local community to see what can be done. It is worth spending some money now to avoid or lessen the fight that will occur once he dies.
    Answer Applies to: California
    Replied: 5/2/2014
    Minor, Bandonis and Haggerty, P.C.
    Minor, Bandonis and Haggerty, P.C. | Brian Haggerty
    A joint will is very "old school," from back in the day before women were people. Assuming your father signed it with the proper formalities, and it will dispose of his estate, then it may still function as his will. The standard of capacity needed to sign a will is not high; as long as your father can say who his family is, and approximately what he has to will to someone, that's good enough. If your brothers do get your father to change his will, you will have an uphill battle to recover your share. Also, don't focus exclusively on the will; the usual practice for the succubus kids is to get all the transfers during father's life, so that his estate has nothing. Often, they will already have spent everything by the time he dies. There is no good answer for this. Try not to let these issues ruin your relationship with your father. Try to stay involved in his health care. Without pushing too hard, make sure he's making good choices for his finances, and not giving any money away that he will need for care.
    Answer Applies to: Oregon
    Replied: 5/2/2014
    Peters Law, PLLC
    Peters Law, PLLC | Mark T. Peters, Sr.
    You need to talk with a local probate attorney. My inclination is that no, it cannot be if it was one sole document.
    Answer Applies to: Idaho
    Replied: 5/2/2014
    Frederick & Frederick PLC | James P Frederick
    Yes. Joint wills are very rare and difficult to enforce. It is VERY unlikely that what your parents had were joint wills. They may have been "mirror-image" Wills, but those can easily be changed by either spouse, at any time. Your father's capacity is certainly an issue, but it can be very difficult to prove lack of capacity. About the best you can do is to make sure that your father meets with an attorney, if he is going to update his documents. The attorney can help filter out possible undue influence and insure that your father's intent is what is at work, and not your brothers'.
    Answer Applies to: Michigan
    Replied: 5/2/2014
    Law Ofices of Edwin K. Niles | Edwin K. Niles
    A joint will is a rare creature. The answer would depend on the language in the will. Are you sure this isn't a trust? Usually, a trust becomes irrevocable upon the first death, meaning that it cannot be amended.
    Answer Applies to: California
    Replied: 5/2/2014
    Ashcraft & Ashcraft, Ltd.
    Ashcraft & Ashcraft, Ltd. | Randall C. Romei
    If your father does not understand the extent of his assets and does not have the ability to handle his financial affairs he may not have the capacity to make decisions in his best interests. If his lack of capacity can be established then he cannot make a new Will. It would be easier to prove lack of capacity now, while he is alive, than it would be after his death. Unfortunately, proving lack of capacity now is a difficult step from a family relationship standpoint. A Joint Will is not the same as a Joint and Mutual Will (a reciprocal Will). The terms, circumstances and evidence indicating the intent of the parties is very important. The Will should be reviewed by an attorney to evaluate its status and meaning. In the case of a Joint Will (a single instrument), the joint nature of the Will is not, in and of itself, sufficient evidence of an enforceable contract to devise between the testators so as to make the contract enforceable in equity by specific performance or quasi-specific performance through a declaration of trust. There must be a contract to protect the intent of the parties as stated in the Joint and Mutual Will. One must refer to the terms of the instrument and/or to other evidence bearing on the question of a contract. When, however, the provisions of the Will are reciprocal, and it appears that they are made in consideration of each other, the instrument is regarded as a Joint and Mutual Will (enforceable as a contract). Such a Joint and Mutual Will may be irrevocable after the death of one of the parties when it is proved by clear and satisfactory evidence that the Will was executed in pursuance of a contract between the parties and that each Will is the consideration for the other.
    Answer Applies to: Illinois
    Replied: 5/2/2014
    James T. Weiner & Associates, P.C.
    James T. Weiner & Associates, P.C. | James T. Weiner
    Actually it may depend upon the terms of the trust itself.
    Answer Applies to: Michigan
    Replied: 5/2/2014
    Arthur H. Geffen, P.C.
    Arthur H. Geffen, P.C. | Arthur Geffen
    It will depend on the wording of the joint will. If it creates a contract between your mom and dad, a beneficiary can sue to enforce it.
    Answer Applies to: Texas
    Replied: 5/2/2014
    Goldsmith & Guymon
    Goldsmith & Guymon | Dara Goldsmith
    Joint Wills are rare. Your father and mother may have similar Wills. I suggest that you have the "Will[s]" reviewed by a lawyer where your father is residing. Also address the need for guardianship and capacity issues.
    Answer Applies to: Nevada
    Replied: 5/2/2014
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