The importance of making a Will cannot be overstated.  However, even the best drafted and thought out Will can face challenge from disappointed relatives or Third Parties who claim to have had an “understanding” with the Deceased.

The grounds for challenging a Will tend to be limited to the following:

  • An allegation that the person making the Will was not Compos Mentos (capacity/soundness of mind).
  • An allegation that an individual making a Will has been subjected to duress and undue influence from a person who had the power or opportunity to bring such influence to bear.
  • A claim that, while the Will itself may stand up under the foregoing tests, there was an enforceable promise (estoppel) made by the Deceased during his/her lifetime which ‘overrides’ the Will.

The whole estoppel issue is a comprehensive ‘blog’ in itself and we will deal with separately at another time.

The sanctity of the Last Wishes of a Deceased are worthy of strenuous protection and the Solicitor drawing up a Will for an individual will implement a number of protective steps to ensure that the Will is a sold document.     The Supreme Court in 1990 stated the position to be as follows:

“It is a fundamental matter of public policy that a Testator’s wishes should be carried out, however, at times, bizarre, eccentric or whimsical they may appear to be.  One man’s whimsy is another man’s logic.”

Even so, there are Wills that fall to the scrutinised by the Courts.

A recent case before the High Court gives an interesting overview of how the Courts consider such challenges.

In this particular case, the Court heard that the Deceased, Mr. B. (a bachelor) had made a Will in 2011 leaving his 58 acre farm to his nephew.

Mr. B’s siblings (with the obvious exception of his nephew’s parents) challenged the Will claiming that there was insufficient capacity on the part of Mr. B when he made his Will.

The Court heard that Mr. B’s health began to deteriorate in 2010.  He was diagnosed as having bowel cancer with a very poor prognosis and a confirmation of terminal illness was given in March 2011.   Palliative Care commenced after diagnosis.

A Solicitors (and his colleague) who did not have any previous knowledge of Mr. B, visited him in hospital at the request of the nephew’s parents and a Will was made.   A different Solicitor who did have a history of dealing with Mr. B, had attended at the hospital on the previous day and was unable to make a Will on that date as he found Mr. B to be unwell and unresponsive.

Mr. B’s complaining siblings claimed that he did not have the requisite capacity to the make the Will and, further, they alleged that the nephew and his family had “monopolised” visiting hours during the last few weeks of Mr. B’s life in an effort to exert pressure and influence him, in his weakened state, into disposing of his property to the nephew and that “undue influence” had been at play.

Dr. Derek Forde on behalf of those challenging the Will noted that, at the time when the Will was made, Mr. B was dehydrated, suffering from potassium imbalance and had elevated urea, which would be indicative of renal failure.   Further, having looked at the deceased’s signature on the Will, Dr. Forde concluded that the Deceased was not in a position to understand or sign any kind of legal documents.   However, when asked about the information given by Mr. B to the Solicitor who made the Will as recorded in the Wills Instruction Sheet, Dr. Forde expressed surprise that the deceased was able to give this information.   The Complainants had sought to make great play out of the fact that Mr. B had mis-stated his land acreage when instructing the Solicitor.

You would be forgiven for thinking that this was not looking particularly good for Mr. B’s nephew or for the robustness of Mr. B’s Last Will and Testament.  However, the Decision of Mr. Justice Meenan serves to emphasise the uphill struggle facing anyone who wishes to challenge a Will.

The Court concluded:

  • The late Mr. B clearly attached considerable importance to his farm.
  • The sale or breaking up of the farm would have run counter to the importance Mr. B placed on the farm.
  • It was entirely logical and rational for the deceased to leave the farm in its entirety to one member of the Family.
  • As Mr. B’s nephew had more involvement in agricultural matters than other members of the family, it was rational that he would be the one chosen to inherit.
  • The Court did not consider the fact that it was the nephew’s parents who made the arrangements for the Solicitor to call to the hospital to make the Will to be an aspect requiring consideration.
  • The Court put no weight in the allegation of monopolisation of Mr. B’s time by the nephew’s family.
  • While in certain circumstances it would be preferable that a Solicitor would get a medical opinion before making a Will, it was not essential and what was important was that the Solicitor had carried out his own assessment based on his interaction with the Deceased. The Court quoted the following with approval:

“the substance of the golden rule is that when a Solicitor is instructed to prepare a Will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator and to make a contemporaneous record of his examination and findings…Compliance with the golden rule does not, of course, operate as a touchstance if the validity of a Will, nor does non-compliance demonstrate its validity.  Its purpose, as has repeatedly been emphasised is to assist in the avoidance of disputes…..”.

 In this instance, the Court concluded that while it may have been preferable for the Solicitor to have had a Medical opinion, the fact that he had not sought and received one did not, in all of the circumstances, undermine his own opinion, based on his discussions with Mr. B in the hospital that the latter had capacity.

In this case, the position taken by the Court was, no doubt, influenced the evidence of Professor Passmore (Aging and Geriatric Medicine) that the levels of medication being given to Mr. B would not have affected his cognitive function.

In rejecting the challenge to Mr. B’s Will and in upholding its validity, the Court held that those challenging the Will had not met the onus of proof that was on them if they wished to have the Will set aside:

“While the burden starts with the propounder of a Will to establish capacity, where the Will is duly executed and appears rational on its face, then the Court will presume capacity.   In such a case, the evidential burden then shifts to the objector to raise a real doubt about capacity.  If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless….”

 Considerable caution is required where a challenge to a Will is contemplated and proper and “unemotional” consideration needs to be given to the prospect of success.   A Solicitor specialising in this area will provide guidance and assistance.


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