Three years and two trials later, the will remains the subject of a fierce probate fight in Sacramento Superior Court. Lawyers for the stepson and O’Brien’s brother have challenged the will as a fraud. They contend O’Brien didn’t have the mental capacity to amend the original trust.
Waiting until you are on your deathbed to create or change your will can cause a lot of chaos after you pass, so don't wait to make those changes! Take a lesson from the late Joseph Herb O’Brien. O'Brien was dying in a hospital room. For a long time he had an estate plan that left his entire estate in a trust, the sole beneficiary of which was his stepson. The stepson had a long history of legal problems. Shortly before O'Brien passed away, he dictated a new will to two friends. This new will left the vast majority of the estate to one of those friends instead of the stepson.
The Sacramento Bee has the full story of what is alleged to have happened in an article titled “Final wishes of a ‘good man’ or deathbed fraud? Judge to rule in probate case.” It is a good read that explains all of the minute details of the case. Basically, the judge has to decide whether O'Brien was competent to change his will at that time or whether his friends coerced him into changing it for their own gain.
One thing of particular interest is the fact that it appears O'Brien had considered changing his estate plan on several occasions. The trustee had even threatened to resign on at least three separate occasions if O'Brien left the stepson as the beneficiary of the trust. However, O'Brien never did make the changes.
It is not clear whether he wanted to or not. If he did, then the mistake he might have made was to wait too long. Certainly, deathbed wills often are looked at as suspect. If you want to change your estate plan, do not make the same mistake. Get it done while there is still time and there are no reasons to call the changes into questions. Do not rely on a deathbed will. A judge may rule against what you would have wanted.
Reference: Sacramento Bee (July 13, 2014) “Final wishes of a ‘good man’ or deathbed fraud? Judge to rule in probate case”