If Esau sued Jacob…or what to look for if you’ve been done wrong in a will.

Esau

275 Genesis Way

Canaan, Alabama 77777

RE: Estate of Isaac; Esau v. Jacob

Dear Mr. Esau:

Thank you for contacting our law firm. As we discussed on the phone, our firm has a strong record of helping people, like you, who may have been cheated out of their rightful inheritance. Before we move forward with your case, we need a few more details from you.

When we talked, you told me the basic facts: You and your brother, Jacob, are twins, but you were born first. As is the custom in your village, your father, Isaac, executed a will years ago ensuring that you, as the older brother, would inherit 2/3 of his estate, with Jacob to receive the remaining 1/3 of the estate. However, just before your father died, he signed a new will that flipped the script – Jacob would receive 2/3 of the estate, and you would receive only 1/3.

You also told me you heard Jacob had a role in getting your father to sign the new will. The story you heard is that Jacob went to your father, who is blind, and pretended to be you – even going so far as to tie lamb skin to his arms to trick Isaac into thinking Jacob was actually you, since you apparently have very hairy arms. Jacob then asked your father to sign the new will, which he apparently did. (You also said something about a bowl of lentil soup and a stupid, offhand remark you made to Jacob about trading your birthright, but that’s not important right now!)

If the details you’ve relayed to me are true, I think we have the makings of a successful will contest. But I have a few questions first.

1.       Do you know if the will has been submitted for probate, and if so, how long ago?

This is the first step in any will contest. In Alabama, there are strict time limits for filing a will contest. If the will has been submitted for probate in the probate court, but has not been admitted to probate yet, you may file an objection in the probate court. If the will was already admitted to probate, we can still contest the will in circuit court, but we only have six (6) months from the date the will was admitted, or your claim will be barred! It’s really important to act quickly.

2.       Do you have a copy of the will?

If so, I need it. I need to see if the will was signed by two witnesses, if it contains an attestation clause, if the signature on the will appears to be genuine, and whether the will itself appears to contain any misrepresentations. We will want to track down the witnesses and eventually get their testimonies.

3.       Did your father suffer from dementia, Alzheimer’s, or some other mental incapacity around the time the will would have been signed by him?

The next step in my analysis is to determine whether your father, Isaac, was legally competent – whether he had what we call “testamentary capacity” – to make a will before he died.

The key questions under Alabama law when it comes to testamentary capacity are whether your father understood the consequences of making a will in general, realized the nature and extent of his estate (i.e., understood what he owned at the time he made the will), recognized the “natural objects of his bounty” (i.e., was aware enough to know his close relatives, their names and conditions – the people who would normally inherit property from him, etc.), and the effect that this particular will would have on the disposition of his estate when he died.

If your father suffered from dementia, Alzheimer’s, or regular and ongoing substance abuse around the time he made the will, we may be able to challenge the will on the grounds that your father lacked the frame of mind to know what he was doing. (The fact that he was blind is not relevant to this question – but may be relevant to other questions. Keep reading.)

4.       Do you believe Jacob told Isaac the will said something different than it actually says?

If he did, and your father believed him, this could constitute “fraud in the execution” – and we may be able to have the will thrown out. Fraud in the execution occurs when someone in your father’s position is misled to believe a will says something different than it actually says, and then signs a new will based on that misbelief.

Considering your father was blind at the time the will was signed, this could be a particularly effective claim! It seems likely that if Jacob felt he had to tie lamb skin to his arms before asking your father to sign the will, he also lied to your father about what the will actually said. Jacob may have made your father think the will favored you over Jacob.

5.       Do you believe Jacob lied to Isaac about some other fact in his life, like telling him that you were already rich and had told everyone you didn’t need his money, etc.?

Lying to someone in your father’s position about other facts that would induce him to change his will in a way he otherwise wouldn’t is called “fraud in the inducement.” Again, tying lamb skin to one’s arms to trick the willmaker into thinking you’re someone else could, by itself, be fraud in the inducement. But if that story’s not true, what if Jacob told your father a lie about your financial condition, or your desires about the inheritance, or your feelings toward your father? If we can come up with evidence of such lies, and show they influenced your father to make the new will, we may be able to have the will thrown out.

6.       Was Jacob in such a dominating and confidential relationship with Isaac so as to be able to override Isaac’s true wishes in making a new will?

Alabama law recognizes the doctrine of “undue influence” as a challenge to an otherwise valid will. To show undue influence, we have to show: 1) that there existed a confidential relationship between the favored beneficiary and the testator, 2) the influence of the beneficiary is dominant and controlling in the relationship, and 3) there was undue activity by the beneficiary in procuring the will.

Let me put that in layman’s terms: let’s say Isaac had health problems and had become really dependent on Jacob for his day-to-day care and companionship. In that circumstance, it might seem natural that Isaac would favor Jacob – but what if Jacob threatened Isaac, saying he would abandon him and let him lie there alone and hungry in the darkness if he didn’t sign a new will leaving him the lion’s share of his estate? Or what if Jacob’s influence over Isaac had become so dominant in Isaac’s final days that Isaac didn’t feel like he had the power to stand up to Jacob? That’s what we call undue influence.

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During our next meeting, I’d like to discuss your responses to these questions, and more: what about your mother, Rebecca? As a surviving spouse, she has rights if she was left nothing in the will. And I’m also interested in any role she may have played in this scheme. And we’ll talk more then about the so-called “trade” of your inheritance for a bowl of lentil soup. (Please tell me you didn’t really do this.)

The issues I’ve outlined in this letter are just the beginning. Cases like these can become much more complex as the facts develop – that’s why it is important to have a smart, committed, experienced lawyer in estate litigation. You’ve come to the right firm.

Call me anytime at 256-764-0097, or email me at nathan@singingriverlaw.com.

Very truly yours,

your attorney,

Nathan A. Ryan