WHERE THERE’S A WILL ….THERE’S LIKELY TO BE A DISPUTE !!!

Image by The U.S. National Archives via Flickr

Wills can often be contentious leaving someone unhappy about the outcome.

I have experienced many cases of this arising and a belief that the person making the Will has been got at, or that someone has exerted undue influence on that person. While most people are fairly shrewd when it comes to making a Will, there are others who are vulnerable and can be pressurised.  Solicitors should in general be vigilant in this regard and unfortunately, this is not always the case.

I remember the story of a very nice old lady who assured lots of different people that she had put them in her Will, perhaps in the hope that they would help her in her old age.  She did indeed put them in her Will, at one stage or another, but as they fell out of favour, or failed to look after her, she had them removed from her Will by making a new Will.  Needless to say, when her final Will was produced there were a lot of disappointed Beneficiaries and a feeling that the old lady had been got at to change her Will – which was not in fact the case. I always say that the fact that someone is unhappy with a Will is not  grounds for challenging it,  but some people will try anything in this regard, in particularly if they are to benefit significantly if the Will is set aside.

One case I recall relates to a relation who, if the story is to be believed, was so good to the deceased that it would bring tears to your eyes and who went on to claim that when the deceased made the Will – which strangely left the claimant out – she was so distressed at the passing away of another close relation at the time that she did not know what she was doing. It was only when a previous Will was produced, which had also strangely enough left out the claimant, that the case was dropped !!

Other people are suspicious when a Will is changed just before a person has passed away. However this does not necessarily mean that there was undue influence exercised or that they were pressurised by a third party. In many cases, if a person becomes aware of their impending death, this directs the mind and gives them cause to reflect. Of course, if that person is not capable of understanding what they are doing, then the Will should not be made. In the case of there being any doubt, then confirmation as to soundness of mind should be sought from the Doctor treating that  person.

In relation to elderly people there is a high duty of care on the Solicitor drafting the Will to ensure that the person is of sound disposing mind and is not being unduly influenced or pressurised into doing something they don’t want to do. In a number of cases I have refused to act if I am suspicious of the circumstances. In one case that comes to mind, I remember a daughter who brought her elderly mother along to make a Will but was not happy with the fact that I was insisting of taking instructions from the mother on her own. She informed me that she was  taking her mother to a proper Solicitor – presumably one who would let the daughter run the show !!

Many times I will get a phone call from a third party telling me that another party wants to make a Will and then going on to say what that person wants to put in it ! In those circumstances, I have to patiently explain to them that I cannot take instructions from them and that the request for the making of the Will must come from the person who wants to make it.  I will also insist on taking instructions from that person on their own  – except in the case of a husband and wife coming in together.  I am always suspicious of someone who hands me a sheet of paper drawn up by someone else.

I would hope that all of my colleagues would be diligent and follow the correct procedures in making Wills. In appropriate cases they should be brave enough to refuse to draw up a Will if they are not satisfied, or are suspicious that all is not well.  Sadly this is not always the case.

 

LegalEagleStar  , Wednesday , 6th. July 2011.

I Was Left Out of My Father’s Will !

Q.  I am in a state of shock. I have just discovered that my late father – who was a widower – has left me out of his will. I have one other sibling, a brother, to whom everything was left. When I spoke to my brother – the sole executor and beneficiary under the will – he just shrugged his shoulders. I think it is so unfair. Is there anything I can do?

 

A.  Yes there is. Under Section 117 of the Succession Act 1965 an application can be made to the Court by a child of a person who has made a will and if the Court feels that the person who made the will has failed in his/her moral duty to make proper provision for that child in accordance with his/her means, whether by will or otherwise, the Court may order that such provision shall be made for the child out of the estate as the Court thinks just.

The matter will be considered from the point of view of a prudent and just parent, taking into account the position of each of the children of the person making the will and any other circumstances which the Court believes to be of assistance.

Not every application under Section 117 will be successful and you cannot bring an application where everything is left to the surviving spouse and that surviving spouse is your mother or father.  The duty can also be discharged by gifts or settlements made by the deceased during his/her lifetime to the child in question

In the present circumstances you should consult with a Solicitor sooner rather than later as there is a time limit. The application has to be made within six months of the Grant issuing in your late father’s estate.

Incidentally there is no obligation on your brother as executor to notify you that you can apply to Court in this regard.

 

LegalEagleStar ,  Tuesday,  8th February ,  2011

DANGERS OF HOME MADE WILLS.

Q.    I   HAVE  HEARD   that it is possible to make your own Will. My neighbour said that it’s easy to do it yourself.  What do you think?

I want to save money but still want to do the right thing.  Help please.

A.    IT  IS  POSSIBLE to draw up your own Will without using a Solicitor but you have to be very careful as there are many pitfalls.  I would strongly advise against doing so.

The main problem is that the Will might be invalid for a number of reasons and this might not come to light until after the person who made it has died.

There are specific requirements for the making of a Will under the Succession Act 1965 which must be complied with for the Will to be valid.

There can be problems with the people who witness the Will.  One case which comes to mind is where the wife of a man who was to benefit under a Will witnessed it.  The will was valid but the intended gift to her husband  was invalid.

Another problem is that a Will should be clear and unambiguous. I have come across a number of “Eason Type Wills” where you can buy  a pre-printed form and fill in the blanks. However, in a lot of cases confusion reigns and a section is wrongly completed and so the intentions of the person making the Will are unclear.

In addition, amendments or deletions are sometimes made which are not properly witnessed thereby causing confusion as to whether or not they were made prior to or after the execution of the Will i.e. when the Will was made. This can lead to problems with the Will being admitted to Probate, cause delays and necessitate the matter having to be determined by a Probate Judge at considerable additional expense.

In some cases it is long after the Will has been made that its validity has to be determined and witnesses to that Will may no longer be alive, contactable or able to recollect what happened at the time.

In general and for the sake of your peace of mind, I’d dvise you always to use a Solicitor.

Better to be safe than sorry.

 

 

LegalEagleStar  Wednesday,  19th January, 2011