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Undue influence, Coercion and Wills

In a recent article we outlined legal issues regarding capacity to make a Will.

A different but related question that is arising more frequently is whether a deceased person who has legal capacity has been coerced into changing his or her Will late in life. This concern is especially relevant in cases involving will disputes and individuals who may have concerns that they have been left out of a will.

Most elderly people, whilst still having legal capacity, find it harder to make decisions and become more easily influenced by those around them. Instances of greater pressure being applied to older people by potential beneficiaries seem to be increasing. [...]  READ MORE →

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Terms used in a Will

WILLS – DOES THE TERM “GRANDCHILDREN’ INCLUDE “STEP-GRANDCHILDREN”?

A big point of confusion in will disputes is whether “step children” and “step-grandchildren” can be included under the expressions ‘children’ and ‘grandchildren’.

When all else fails, Courts aim to determine expressions in a Will according to the intention of the deceased. In some cases, Courts may look into the nature of family relationships in order to determine the meaning of an expression such as “child”. [...]  READ MORE →

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Claims against an Estate

THE NEED FOR DISCLOSURE WHEN THERE ARE CLAIMS AGAINST AN ESTATE

A person is entitled to leave their estate to whoever they choose. However, there may be circumstances in which a person has been left out of a will and believes they should have been included.  This situation often leads to family provision claims, as “eligible persons” can apply for a family provision claim against an estate. In simple terms, “eligible persons” include spouses, de-facto partners, children (including adult children), grandchildren, and members of the household who were dependent on the deceased. [...]  READ MORE →

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A Will Lawyer’s Advice relating to Capacity to make a Will

Can a person without capacity have a will made for them?

If a person does not have testamentary capacity, that is the mental ability and understanding to make a will, the Court has the power to make a Will for that person.

What if a person makes a will beforehand and later loses the ability to change it due to mental impairment?

Consider the following scenario.

A person has made a will which leaves all their assets to their spouse. A few years later this person permanently separates from their spouse but forgets to amend their will. Some time later they become mentally impaired and they will no longer have the capacity to alter their will.

If this person were to die, their previous spouse would receive all their assets in accordance with the provisions of the will. No assets would be given to the person’s children or other important people that the person may have intended to have mentioned in their will if they had the capacity to change it. [...]  READ MORE →