Protecting a will from being challenged

When someone dies, the last thing their family wants is a legal dispute about the validity of their will. With the increase in the number of blended families, challenges to the validity of wills are increasing. However, there are steps that can be taken to minimise this risk.

Requirements for a valid will

It is well known that a will is a legal document which sets out how a person wants their assets to be distributed once they die. If you are over the age of 18 you can make a will – provided you have capacity.

In general terms a person will have the necessary capacity if they:
• know what a will is;
• know of the amount and type of property they are disposing of;
• understand the moral claims to which they should give effect when deciding to whom to leave their property; and
• are not delusional or suffering from a mental illness at the time they sign their will.

Superannuation and trusts

Many people have assets not only in their own name, but also held through superannuation funds or trusts. Estate planning involves dealing with these assets, which may involve the client signing documents relating to what happens to the assets in their superannuation funds or trusts should they die.

The same questions which arise in respect of the validity of a will also apply to the validity of the documents relating to superannuation funds and trusts. However, for simplicity, this article refers only to wills.

Who decides on capacity?

Doctors are best equipped to assess the mental capacity of their patient.
However, a lawyer can be involved in carrying out a “legal” assessment of the
will maker’s capacity. This involves asking the client some questions at the time of signing the will and keeping a record of their responses. The questions relate primarily to the person’s understanding of the will they are about to sign.

If there is a question about someone’s mental capacity to make a will, then an opinion, preferably in writing, should be obtained from that person’s treating doctor or, in some cases, there geriatrician. Ideally, the doctor should conduct a medical examination to determine the person’s mental capacity and then provide a written report confirming their opinion. The opinion should state that the will maker has the required mental capacity to make a will.

When should the will be signed?

Where there is the likelihood of the will being challenged on the will maker’s death on the basis of a lack of capacity, it is important to obtain medical evidence.

Any medical examination of the will maker should take place as close to the date of signing as possible. In some extreme cases, such as a person being treated with morphine, the examination should take place on the same day as the will is signed, if possible. Hospital staff are generally instructed not to witness wills. However, ideally, the will maker’s treating doctor should be present, even if they decline to sign the will as a witness.

Having a medical report shortly before the will is signed stating that, in the doctor’s opinion, the will maker had capacity, is good evidence that the will maker had the required mental capacity.

Keeping evidence of the will maker’s capacity

Somerville Legal has a free service of keeping wills in safe custody indefinitely. Any medical reports or other evidence relating to the person’s understanding of the will is kept in safe custody with their will and other documents. In that way, if the client dies, and there is a subsequent issue about their capacity, evidence is readily available.

Could the will be challenged?

It is difficult to set aside a will on grounds that the will maker lacked testamentary capacity if the will is prepared by a competent lawyer who took appropriate instructions from the will maker and was satisfied the will maker had the requisite testamentary capacity to make a will.

However, in some circumstances the will can still be challenged on the basis that the maker did not have sufficient mental capacity. This arises most frequently where the will maker is ill, for example, in hospital on medication or elderly and suffering from dementia.

Somerville Legal’s wills and estates team, led by Law Society Accredited Specialist Stephen Lynch, is available to meet with you at any time – including by telephone or video conference. For an appointment, call us on 99232321 (North Sydney office) or 49278077 (Newcastle office).

Click here to read our article on signing wills and other estate planning documents in a time of social distancing.