Suspicious Wills: a reason not to do an at-home Will
by Jacqui Brauman
When someone elderly or sick makes a Will, and there’s no concern about them having doubtful testamentary capacity, there is an assumption that they understood the contents of the Will.
In some circumstances, though, this assumption is reversed, and the executor and beneficiary actually have to prove that the person making the Will understood its contents.
It’s like trying to prove your innocence – it’s really hard to do, particularly when the persons who signed the Will is dead!
This suspicion arises when someone who is a beneficiary of the Will prepares the Will for the person to sign. This could either be helping them to type it up, or it could be handwriting the Will into a Will-kit for them.
To avoid this suspicion, it’s another reason to be a solicitor prepare a Will, instead of doing one yourself.
First Case study
A case before the Court in 2010 was a recent case where the Court found that the Will was valid. This was a 96 year old single lady who had died in 2007, and her real estate agent had prepared the handwritten Will for her, and he was a substantial beneficiary.
The deceased lady had never married, had no children, and had lived with her sister (also never married and no children) all her life. The sisters had invested in real estate. Her sister died some years earlier.
The sisters had had solicitors prepare Wills for them in the past, which benefited their nephew and nieces, and charities. But after her sister died, the deceased lady made a number of handwritten Wills with the help of her real estate agent. The last version left specific bequests to her nephew, three grand-nieces and two charities, and about $400,000 of residue to the real estate agent.
On the face of these facts, you can see how it could be suspicious. So the family took the Will to court to assess its validity, and the facts given by the real estate agent, the neighbours, and by medical staff were all sufficient to prove that the lady knew what she wanted done. So the Court found the Will to be valid!
Second Case Study
Even when a solicitor drafts the Will, a suspicion can arise. The Court in 2017 also found this Will valid, but only after a significant Court case costing a lot of money. This old lady died in 2012, and left her entire estate to her granddaughter. Only if the granddaughter predeceased did any of the old lady’s children get anything.
The old lady’s children took the Will to Court to determine if it was valid.
The suspicion arose because the old lady had become isolated, unwell, and the only person with any contact with her was the granddaughter. The granddaughter organised a solicitor to come and visit the old lady, and was present in the room when the solicitor took the instructions for the Will.
The Court heard evidence of the relationship between the old lady and her granddaughter, and that her granddaughter had been living with the old lady for some years. The old lady’s gardener also corroborated the evidence of the old lady’s attitude toward her children, and her intentions. There was evidence from the old lady’s doctor about her having no cognitive impairment, but the evidence that was most important was the solicitor’s notes.
The solicitor gave evidence that he read the Will to the old lady word-for-word, and she appeared to understanding. This evidence was accepted. Because the solicitor was not getting any benefit, this evidence was given more weight, and the Will was held to be valid.
It would be interesting if the Court would have come to the same decision if the granddaughter had prepared the Will herself, and then had some hospital staff witness the Will.