A client recently contacted me to say that her mother needed a power of attorney. After asking some questions it became clear that it would not be possible for a power of attorney to be prepared on this occasion because mother had advanced dementia so was...
Making a will when you are close to death and without professional assistance is an effective means of fostering dispute between your loved ones after you are gone. As a High Court case strikingly showed, that is particularly so if you intend to leave your estate outside your immediate family.
The case concerned an exceptionally intelligent man whose life had been blighted by mental health difficulties. He was eloquent and talkative and had built his life around friendships formed with lodgers in his substantial home. His complex and difficult personality had led to estrangement from his brother and sister, although contact resumed between them in the weeks and months before his death.
He was in hospital, suffering from the brain tumour which caused his death less than two months later, when he was alleged to have made a will leaving everything he owned to a longstanding friend and confidante – the beneficiary. His siblings, who would have inherited his estate as his next of kin had he died without making a will, launched proceedings challenging the document's validity.
Ruling on the matter, the Court found that the will was duly executed. Arguments that the man was so unwell that he would have been unable to hold the pen used to sign the document were rejected. Also finding that he had the mental capacity required to make a valid will, the Court noted that treatment with steroids had at the relevant time brought a temporary improvement in his condition.
The beneficiary and one of the two witnesses to the will had in some respects acted in an underhand manner. They had provided the impetus for making the will and they had concealed what they were doing from the man's brother. There was, however, no suggestion that they had brought undue influence to bear and the Court was satisfied that the will ultimately reflected the man's true wishes.
Upholding the will's validity, the Court found that the man's intention was to benefit the group of friends that he considered his family. Although he was in the grip of progressive brain damage due to the tumour, he was able to understand and approve the simple contents of the will. The document was read to him and he probably read it through himself, as best he could, before signing it.