Making numerous wills in old age, chopping and changing their terms, can sadly be a recipe for dispute between your loved ones after you are gone. As a High Court ruling recently reviewed by Ilona-Jade Morgan showed, however, even wills that are obviously unfair or harsh in their effect are likely to be considered valid if they are rational on their face.
The case concerned a man who was diagnosed with dementia more than 10 years prior to his death, aged 91. In the course of a single decade before his demise, he made six wills, with members of his family shifting in and out of inheritance. By his final will – which he signed at the height of the COVID-19 pandemic, three months before he died – he disinherited one of his three children and the daughter of his long-term partner, who had for years provided him with support.
Discord having arisen within the family in the wake of his death, the executors of his estate sought a judicial declaration as to the validity of his various wills. The principal question for the Court to resolve was whether, in the light of his dementia, he had the mental capacity required to make the final will.
The Court observed that his various testamentary dispositions did not reflect well on him. His disinheritance of his partner’s daughter within weeks of her mother’s death was frankly callous. By a series of three wills, he first disinherited, then re-inherited one of his children, before finally disinheriting him again.
In admitting the final will to probate, however, the Court noted that it did not follow from his harsh decision-making that he was incapable of making a valid will. The document, although unfair in its effect, was rational on its face and the product of considered choices on his part. He had plenty of practice in making wills and there was simply no evidence of any mental disorder or delusion affecting his decision-making.
Due to the pandemic, the witnesses to the will had to view him signing the document through the windows of a car in which he was seated at the time. Despite such difficulties, however, the Court found that the will, which was professionally drafted, had been validly executed.
We asked Associate Solicitor Ilona – Jade Morgan for her expert insight –
“This case shows the importance of discussing, not only your current will instructions with your solicitor, but also your previous wills. The process of disinheriting someone, who was previously included in your will or who you ought to have considered, is a difficult issue and requires clear decision making and reasoned explanation.
Clients who choose to make significant changes to beneficiaries frequently should feel supported by the decision made in the case. When using a solicitor for advice and obtaining a professionally drafted Will, the risk of inheritance disputes such as this can be minimised and the clients wishes can be followed.”[/col] [/row]