Leaving People Out – Example
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Want to make a start on your will?
Making a Will is not about wealth it is about making sure that what you want to happen to your estate does happen. It gives you the opportunity to specify such things as who will administer your estate, who will care for your children and who will receive specific items of your property.
John makes a will leaving everything to his son.
His daughter Sarah lives overseas and as a result has seen him only rarely during the last few years of his life. She used to phone him fairly regularly and in the last few months of his life became concerned that he was becoming senile.
On his death she is very upset to discover that he has left her nothing and is even more concerned to discover that the will was made just four months before he died.
She consults her solicitor who asks her if her father was suffering from dementia at all. Once Sarah has raised the issue of mental capacity it is up to John’s son to prove that his father had the capacity to make his will.This may involve a full-blown contested probate hearing or may be resolved pre trial by the production of a medical report.
Whatever the outcome, a lot of bitterness and falling out between siblings may be caused.
In some instances, there may be a presumption against sanity. This is because English law presumes a state of affairs continues without interruption unless the contrary is proved. It follows that if you were known to be insane at a time prior to making your will, it will be presumed that you continued to be insane.
The person seeking to prove the will must then prove that you had ceased to be insane when the will was signed. The presumption that you remained insane may be enhanced by the terms of the will itself. For instance, the dispositions may be such that no sane testator would dream of making them or they may be irrational.
On the other hand, if the will makes sense and contains provisions that an ordinary person might well be expected to make, this can rebut the presumption of insanity. This being English law, a bit of eccentricity on the testator’s part is permitted. It would appear from the case law that there is greater leeway granted to home-made wills in that regard.
For the purposes of making your own will it is probably not necessary to consider the issue of delusions since no testator acting in person is likely to consider he suffers from them. Suffice it to say that it is possible to make a will although suffering from a delusion unless the delusion is such as to affect the disposition of the estate.
A person may have lucid intervals during which he can make a valid will but, again, the onus will be on the person propounding the will to prove it.
It is fair to say that as we grow older our mental faculties diminish and senility may affect the ability to make a will.
The drugs used to treat illness may also have an effect on mental capacity. Strong painkillers, for example, may result in the would-be testator being ‘not quite with it’. With an older person or somebody suffering from serious illness, it is essential to seek professional advice.
Most solicitors preparing wills in those instances will seek to have either a report from a medical expert or ask the doctor to witness the will.This has been described by one judge as ‘the golden but tactless rule’. In any event it is advisable for detailed notes of the testator’s condition and the circumstances of execution of the will to be taken and kept with the will for future reference.
The closer to death the testator is, the more important this becomes.
If you are contemplating making a will because you have recently been diagnosed with a terminal illness, you may consider it worthwhile to ask your doctor if he or she will be a witness to your signature. At least then the doctor may be approached for a statement by your executors in the event of a dispute.
Note that being an alcoholic or drug addict does not of itself mean testamentary capacity is lost but obviously such substances may cause mental impairment sufficient to lead to incapacity.
More on – Leaving People Out – Lack Of Knowledge And Approval Of The Will’s Contents or Leaving People Out – Undue Influence Or Fraud
- external sites: Inheritance Tax Service – Telegraph