Making Sure Your Will Stands Up In Court
Updated: Mar 10, 2021
Everyone has the right to change their Will. Indeed, we encourage our Clients to regularly review the contents of their Will to make sure that it still meets their requirements. Circumstances change, relationships strengthen, or breakdown, new arrivals into the family may require additional provision.
However we have previously referred to the significant increase in the amount of litigation concerning Wills in recent years and when a Will is changed so that an individual does not receive a benefit that they would have otherwise have done they may be inclined to challenge the new Will.. A few days ago, the High Court delivered a judgement in yet another of these cases. This involved an elderly lady who had previously made a Will that gave some relatively small gifts to friends and family members, but left the remainder of her estate to be divided equally between her 2 sons (A and B). After she suffered a fall, A moved in to live with his mother. He told the court that he had sold his own property to do this, although this proved to be not quite the truth, in reality, as he had been made bankrupt and his property had been sold by his Trustee in Bankruptcy.
A little while later A arranged for his mother to see a Will Writer and a new Will was drawn up under the provisions of which the whole of the lady’s house was left to A, leaving B with only a half share in what was left. Effectively, therefore, the new Will deprived B of his share in the house, the biggest asset in the estate.
B challenged the new Will on 3 grounds:-
• He suggested that as a result of his mother’s health she did not have the necessary testamentary capacity. Having heard from a number of witnesses, however the Judge accepted that lady did have the necessary mental faculties to make a Will.
• He sought to persuade of the Court that the lady did not understand, or intend the consequences of the change in the Will. Again the Judge was not convinced, deciding that the mother was fully aware of the content of the document and what it would mean.
• Finally B suggested that his brother had exerted undue influence on the mother to persuade her to make the new Will. Because of the circumstances of this case the Judge decided that this was the case. Accordingly he threw out the later Will and ruled that the lady’s estate should be distributed in accordance with the earlier document.
None of us like to think of an unseemly squabble between our nearest and dearest after we have passed away. The reality is that such arguments do occur and are becoming ever more frequent. Naturally, we do everything that we possibly can to avoid such events. Sometimes this does involve us in advising that an opinion of a qualified Medical Practitioner be obtained before a Will is executed. We understand that it hardly seems polite (to say the least!) for us to question the mental capacity of our Clients, but we think, if we can help avoid the trauma and expense of litigation later, that being a little less than tactful is a small price to pay.
We may also ask for your agreement that we use a recording device to actually record the meeting, or meetings at which your Will is discussed. These recordings are stored digitally and form part of your file. They are perfectly confidential and would only be released after your death in the event of a dispute as to your wishes. This is one way in which you can effectively give evidence “from the grave”, enabling a Judge to hear for himself the reasons for which you have made particular decisions.
Accordingly, if we make such requests, please don’t be offended. We really are acting in your best interests.
If you would like to read the full Court Judgment in the case we mention above, it can be found here.