Preventing Wills being contested

15th July 2010  |   Category Law Updates , Private Client Law Updates

It is always worth remembering that where someone who is elderly and/or in poor health has a Will professionally drawn up, problems may arise if the person preparing the Will ( the Will writer) does not take special care.

The Will writer needs to satisfy himself or herself that the person making the Will (the testator) really understands exactly what he or she is doing, with their mind clear and not affected by mental illness of any sort - and not being put under pressure by anyone else .

This means that it will very often be necessary for the Will writer to obtain a medical report from the testator's doctor before going ahead and/or to arrange for the doctor to witness the testator's signature to the will in due course. Mental disorder may not be apparent to a professional who is not a doctor.

So elderly people should not feel insulted if their solicitor asks their permission to obtain a medical report from their GP before proceeding to draw up a Will for them to sign; the solicitor is just trying to ensure that the Will cannot be successfully challenged at a later stage by someone who may be unhappy about its terms.

If the solicitor or other professional Will writer does not do this, then he or she may be criticised or even sued for negligence after the death of the testator. This problem arose in a recent reported case in the High Court called Key v Key. In that case, immediately after the death of his wife to whom he had been married for 65 years, Mr Key was seen at home by his solicitor and was then taken by his adult daughters to his solicitor to sign a new Will in their favour. This new Will was perfectly fair in its terms, in that by providing for the two daughters in preference to Mr Key's two sons this acknowledged that the sons alone had already been given farming land by their father a few months earlier . However, the judge decided that Mr Key did not have sufficient mental capacity to make a valid Will at this time because of the severe effects of his recent bereavement upon him . The situation might well have been different if the daughters had waited for a longer period to elapse following their mother's death before working on their father - or if Mr Key's doctor had been asked at the time to confirm that Mr Key was then fit and well enough to make a new Will and had felt able to confirm this.

This case is interesting to lawyers who practise in this field, as it is normally very difficult to persuade a judge to overturn a Will on the grounds of undue influence, meaning that the testator was coerced by someone else such as a family member into making a Will , usually in favour of that person . This is very difficult because the law allows someone else to persuade a testator to make a Will - and it is often impossible to prove that persuasion went beyond that and that the testator was in fact coerced or forced. In Mr Key's case the judge was able to decide that the Will was not valid in such a situation where Mr Key was evidently influenced by his daughters, without having to decide that he was actually coerced by them in any way.

For further information about contesting a Will, contact Jeremy Ferris.

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