Monday, January 25, 2016

Challenging a will due to the lack of testamentary capacity

A recent post listed the five main ways in which a will can be challenged

One of the aspects listed was the ability to challenge a will due to the will maker’s lack of testamentary capacity when signing the document.

As set out in previous posts, there are a number of critical issues that must be addressed to ensure that a will maker does possess sufficient testamentary capacity to avoid a situation where their will is held to be invalid.

One technique that is being used increasingly in situations where there is some potential concern about testamentary capacity is ensuring that detailed medical evidence is created at the time of drafting and ultimately signing a will. This evidence can include:

  1. having a will maker’s regular doctor provide an opinion as to their testamentary capacity on the date of signing the will; 
  2. having a specialist medical practitioner assess a will maker, solely with reference to the criteria for testamentary capacity; and 
  3. retaining the medical evidence together with a detailed file note by the lawyer who prepared the will.

Tuesday, January 19, 2016

Ways to contest a will

At least anecdotally, litigation in relation to deceased estates is a growth area of the law.

There are strict rules that relate to the time period following death within which an estate can be challenged.

The easy 'rule of thumb' is that litigation should be commenced within 6 months of the date of death and generally it is impossible for proceedings to commence more than 12 months following the date of death.

The five main mechanisms by which a will may be challenged are:
  1. lack of testamentary capacity (i.e. the will maker did not understand the nature and effect of the document they were signing); 
  2. contractual obligations (i.e. it can be shown that the will maker entered into an arrangement that overrides the provisions of their last will); 
  3. a later, inconsistent, testamentary document (i.e. despite a will receiving probate, a later document is discovered that is inconsistent with what was otherwise understood to be the final will); 
  4. undue influence (i.e. the will maker signed a document that they were essentially forced into or misled about its contents); 
  5. family provision application (i.e. a person who is within a defined category of relationship with the will maker challenges the provisions of the will on the basis that the will maker failed to make adequate provision for the person’s proper maintenance and support). 
Future posts will explore each of the above concepts.

Image credit: Brian Turner cc