Graham Colley

Solicitor 

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  • Disputed Wills

A Will can be challenged on the basis that

(a) that the will was not duly executed;

(b) that at the time of the execution of the will the testator was not of sound mind, memory and understanding; and

(c) that the execution of the will was obtained by undue influence or fraud;

 

1. Failure of due execution

We always ask our clients to confirm that they have executed their Wills correctly. They have:

"read through them to ensure that details were correct and understood the gifts we were making. There were two witnesses present and neither witness was a person referred to, or in any way interested under the provisions of the Will, or the husband or wife of such a person. The Testator and the two witnesses remained together throughout until all three had signed #in the same pen

If these rules are not followed then the question of due execution can arise.

2. Incapacity

The mental capacity required to make a Ill is high in compared to many other transactions.

In Banks v Goodfellow Judge Cockburn said:

'It is essential that a testator shall understand the nature of his act and its effects; the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made'.

But, a person need not be in perfect mind and a will will not be disallowed merely becuase its maker 'was moved by capricious, frivolous, mean or even bad motives. A testator may disinherit his children to gratify his spite or benefit charity to gratify his pride ...'

3. Want of knowledge and approval

Someone seeking probate must be able to show that at the time of execution the testator knew and approved of its contents. Problems of 'want of knowledge and approval can arise in three different ways, namely: (a) where there is a mistake in the preparation of the will; (b) or where the testator is blind, deafness, or illiterate; and (c) where the circumstances make the Court suspicious.

4. Undue influence

For a claim of undue influence to succeed it must be established that the mind of the testator has been so dominated that the Will is the result not of his/her own wishes but of that of the influencing party.

5.Forgery and fraud

6. Revocation

A testator's will may have been revoked. A will may be revoked by marriage or by divorce; by a new will; or by its destruction.

 

  • Proprietary estoppel and Mutual Wills

(a) Proprietary estoppel

It must be shown:

(a) The claimant believed he was to receive under a deceased's Will .

(b) the deceased encouraged that belief was by and whilst there is always a right to change his/her mind deceased to believe the assertion was that the deceaswed woudl not do so

(c) The claimant acted to his/her detriment relying on that belief and that it was unreasonable of the deceased to fail to make such provision.

(b) Mutual wills

Where there is an agreement between two people that their wills are to be mutually enforceable (including an undertaking not to change after the death of the first ), then a floating trust arises, which is irrevocable after the death of the first and becomes effective on the death of the second.

The floating trust is not affected by revocation of the second 's mutual will after the death of the first testator. Accordingly, the estate of the second is subject to the floating trust and must be administered as such.

 

 


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Copyright © 2004-08  Graham Colley - Solicitor
Last modified: November 30, 2008

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