I’m concerned my mother changed her Will right before she died

by Jacqui Brauman

The difficult reality is that the change of a will late in life, especially close to death, is indeed an occurrence that happens more times than we’d care to imagine. It is truly concerning when this happens and there are multiple factors to consider, potential steps to take, and legal avenues to explore.

Validity of the New Will

The first thing to consider is whether the new will is valid. A revised will could be invalid due to lack of testamentary capacity, which you might want to explore if you are planning to challenge the will. It’s important to note that there are numerous precedents and tests around testamentary capacity.

If you believe your mother lost testamentary capacity, start gathering evidence on this immediately — the sooner, the better. If your mother is still alive, schedule medical appointments for her, then consult with a geriatrician or a neuropsychologist to assess her testamentary capacity.

This evidence is crucial, even after a loved one has passed. Although retrospective medical assessments are impossible, doctors who knew your mother for an extended period may provide insight. They might have run mental tests or other assessments throughout the years, and these could lend evidence for your case.

Remember, testamentary capacity involves more than medical assessments. Other crucial evidence might come from signs of cognitive decline, forgetfulness, inability to make decisions, or being easily influenced.

Undue Influence

Another reason to dispute a late-in-life will change could be if undue influence was exercised on your loved one. For example, if someone took your mother to a lawyer to change her will and you believe that person manipulated your mother’s decisions, this could be grounds to discredit the will.

This type of proof can be difficult to gather and often relies on patterns of behavior. For example, if your mother had been increasingly isolated by this person. However, without direct insight into your mother’s mindset or the conversations held during her will change, proving undue influence could be challenging.

Moving Forward

If your mother or another elderly loved one has enacted a last-minute will change, there might be a basis to challenge the will’s validity. This challenge could lean on a case of diminished testamentary capacity or possible undue influence. Both require evidence — which is often easier to gather for testamentary capacity — so start as early as possible.

This is only a starting point, and it is advisable to seek professional legal counsel to explore the possible nuances and complexities of your individual case. If you think this information might be helpful to others, please don’t hesitate to share.

There are plentiful resources available online, including video resources and informative blogs on our Facebook page. We publish new content every week, so if you have a specific topic you’d like us to address, don’t hesitate to reach out. You can contact us via our website at admin@tbalaw.com.au.

We’re here to provide guidance and support during these challenging times. You’re not alone in navigating these difficult waters.