My brother was diagnosed in July 2009 with 4th stage rectal cancer with a short span of life left. He had never married and had no children. While in the hospital, he gave me POA to take care of his bills, social security, etc. He passed away June 2011, after a well fought fight with his cancer. Two months after he passed, my niece and the ex-wife of another brother, came forth with a will that was made by them and signed before a notary by my deceased brother in September 2010. This will was kept secret until August 2011 and in it, left everything he owned to my niece. My brother lived with me and I took complete care of all his needs for 2 years. Could he sign this will without my knowledge or presence of his signing it? This all is in the state of Kentucky.

Though you have POA he can still sign things, I know this because my parents have POA over each other. But by how it sounds I doubt he would sign it without telling you; or that they would wait to bring it up. Verify the document, compare his signature on the POA to the will they supposedly have, make sure of the notary. One of my family members went through something similar and the other party would not provide the will (because they were lying).

My sister and daughter, both know the notary personally, as he coaches their daughters' basketball teams. They spoke to him concerning this will, after it came to light and he said that he knew who my brother was so he notarized it, but didn't explin to him what he was signing and yes, as close as my brother and I had became, and talked about everything, even a will, he never told me. I just don't know if I can prove that he didn't know what he was signing. Also, the notary told them that my brother didn't have his glasses on, he couldn't see or read anything without them. I was told by a non-professional party, that he couldn't sign it without me being present or notified.. That is what I am asking legally about. Thank you in advance for your reply.

I'm not sure about notary laws; but with most professions like doctors you can't work for family or friends. With doctors it needs to be a patient client relationship, it might be the same with a notary, but I am not sure. If it is the same then the notary means nothing. It sound to me (I am NOT a lawyer) that you have a pretty strong case- if not only for the fact that your brother could not read the document and they had a friend notarize it. Still ask to see the will. It may come down to a civil case that a judge needs to see. In a non criminal case you need a preponderance of evidence (rather than beyond a reasonable doubt), to me it sounds like you have that.

OK, first a notary is nothing more than a professional witness. The notary knew your brother's identity so could verify his signature. The notary can testify as to what she thought about whether your brother was aware what he was signing, but how much weight it would carry I don't know.

Second, did he give you POA before or after he signed the will? The timing can be important here.

However, there is nothing that says he can't sign a will without notifying you, even if you have a POA. Nor that he can't give everything to the niece (is the niece his daughter?).

I'm sorry but I don't feel you have a very strong case. It could go either way. He DID sign the will. You will need to convince a judge or jury that his signing the document was not his intent. If your niece is his daughter, that may be hard.

"He had never married and had no children" I believe the niece he is speaking of is his brothers niece as well.

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Originally Posted by citygirlrst

"He had never married and had no children" I believe the niece he is speaking of is his brothers niece as well.

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Good catch, I missed that.

That does make your case stronger a court is going to find it hard to believe that a niece was given an inheritance over a sister who was given POA and took care of the deceased.

I'm curious as to why you didn't inquire about a will. Or have him make one. If he died intestate the state will have to be divided according to laws in inheritance in KY.

What bothers me is that it sounds as if the notary didn't verify the identity of the person who had signed a document. It would be illegal for a notary not to had some form of identification from the persons doing the signing even if they knew them for a lifetime.

It is just the way business is done. You provide a paper trail. Also if the POA was signed before the signing of the will then notification should have been given as it directly affects the outcome of the POA. A person can give to whoever they want to but the law has to be followed.

The POA was signed July 2009, the will was made and signed September 2010, my brother passed away June 2011. The niece we are speaking of is the daughter of another one of my brothers, and yes, my brother and I talked about a will, but he felt he had time and at our last speaking before he was incapable of communicating, he said he didn't have a will. Thanks for all your replies, they are very helpful.

BTW, the will only came out when my niece, prompted by my brother, her father, had a lawyer informed that she had inherited everything and wanted personal items my brother had left at my house, returned to her because of the will.

Then tell the brother or the attorney to file the will for probate and you will challenge its validity.