“My father updated his will just before his death. I was the only person named besides the main beneficiary, his wife. I’d expected the will to look after other family members, so I felt confused, guilty and lucky in equal parts.”
This sad tale recounted by writer Nina Hendy appeared in the Sydney Morning Herald last week. Nina’s father had experienced sudden poor eyesight and was diagnosed as an aggressive brain tumour requiring surgery, radiation, chemotherapy and handfuls of medication. His treating doctors warned the family about depression and personality changes, such as aggression.
A few months after he died, Nina discovered that her father had been signing transfer documents that stripped his estate bare in the weeks before his death. This meant there was nothing in his estate to contest. She also discovered that all previous wills had been destroyed. It took just over a year for her to finally get her inheritance.
Although Nina’s story might seem shocking, it is sadly a frequent occurrence. Various medical studies puts the incidence of major depression in terminally ill patients at between 25% to 77% with advanced disease increasing the likelihood of depression. Anxiety and delirium are also common, and all three conditions tend to be underdiagnosed. In some cases, these disorders can affect a person’s ability to think clearly which may lead to them changing their Will.
If a parent dies and it is discovered that they changed their Will before death, it may be possible to challenge the Will. This might be done on a range of grounds – for example:
The person did not have capacity to make a Will
The law requires that those making a Will:
- Are able to understand that they are making a Will, and the effect of making that Will.
- Know the nature and value of their estate.
- Understand the consequences of excluding/including certain people in their Will.
- Are not suffering from a disorder of the mind that might influence their views (Banks v Goodfellow).
If the person changed their Will and at the time they did not satisfy the above criteria, they may lack the necessary testamentary capacity for the Will to be valid. However, the simple fact that they had anxiety or depression on its own is unlikely to be enough to show they didn’t have capacity.
On this point in Jeffery & Anor v Jeffery* Mr Justice Vos concluded:
“The deceased obviously had capacity to make her wills. She never suffered from any mentally incapacitating complaint, even if she did experience occasional anxiety and mild depression. If people suffering from such complaints were unable to make wills, a large percentage of the population would be so inhibited.”
The person was unduly influenced to change their Will
Seriously ill patients are typically vulnerable and may have been influenced by another person to change their Will. You can challenge a Will if you can show that someone unduly influenced, coerced or put under duress the person who was making the Will. You would need to show that there is no other reasonable theory to explain the terms of the changed Will.
The person did not provide for you
If the person provided for you during your lifetime but did not provide for you in their Will (or died intestate without a Will and you do not stand to benefit under the rules of intestacy), you may have grounds for a challenge under the Inheritance Act. You may be able to claim that they should have made reasonable provision for you but did not. These inheritance disputes are getting more common, thanks to increasingly complex family structures.
The person promised you something
If the person promised you something during their lifetime and you relied on this promise to your detriment, you may be able to challenge the Will if they did not include the promise.
The person made a gift on their deathbed
Sometimes people have a last minute change of heart, making a gift to someone they care about on their deathbed. Lack of time means the formalities of this gift may not have been dealt with.
There are many other grounds on which to challenge a Will or make a claim against a person’s estate. If you are unhappy about a Will or believe you may have a claim against the estate of someone who died, get in touch with us for advice. Call us on 0800 788 0500, email email@example.com or use the form below to tell us about your circumstances.
* Jeffery & Anor v Jeffery  EWHC 1942 (Ch),  All ER (D) 124 (Jul))
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