QLD New Will Made - Is It Valid?

[Eugene]

An elderly member of my family has recently passed away. We have now learned that another member of the family took him to have a new will made 2 years ago - unbeknownst to the rest of us. The person who arranged to have the new will made is also the executor. My deceased family member was taken to a lawyer he had never dealt with previously, and the person who made the arrangements was not formerly a beneficiary - and is now the major beneficiary (together with his children, also unmentioned in earlier versions of the will).

This is a distressing situation as my deceased family member was suffering from Alzheimers disease. I have seen a copy of this new will, and it is a very poorly prepared document that does not reflect the astute and thorough individual that my family member was prior to the onset of his disease. The will is very brief and contains very little detail, not even including provisions for his funeral. This is in contrast to 2 earlier versions of his will, which were lengthy and comprehensive.

Moreover, aside from the lack of detail and stark differences in the intended beneficiaries (the two earlier wills were relatively similar), the copy of the new will that I have seen contains absolutely no signatures, so how can I know it is valid? I have requested the lawyer who drafted the will to provide me with a copy of the original document, but have received no response at all. I believe that as someone mentioned in all versions of this persons will, I have a legal right to obtain a certified copy of the document.

I feel outraged that my family member may have been tricked into doing something he was not fully aware of, and it is upsetting to feel so powerless because I don't feel I can trust the executor of will. Suggestions are most welcome.

 

[Sophea]

Dear Eugene,

This is a very common situation as you may have seen from previous threads. I would refer you to the following previous discussions:
http://www.lawanswers.com.au/thread...-when-dying-patient-incapable.1126/#post-4191
http://www.lawanswers.com.au/threads/executor-of-will-breaking-the-law.1214/

Entitlement to View Will
The beneficiary of a Will is entitled to receive a copy of the Will in its entirety if they make a formal request to the Executor to do so. TheExecutor must acknowledge the request and send the beneficiary a copy of the Will. The beneficiary may be liable for any expenses related to producing and sending the copy. I would recommend getting a copy of the original will so that you can determine whether it is in fact validly executed.

Valid Execution of a Will
You can read about the formal requirements of a will (ie how it should be signed and witnessed) here: http://www.australianestatelawtoday.com.au/wills/how-to-properly-sign-a-will/

In short, the will must be:

• in writing
• signed by the will maker with the intention of executing the will
• signed by 2 witnesses

If it is not it will generally not be held to be a valid will, unless the court finds reason to dispense with the formal requirements because it is satisfied it did reflect the true intentions of the will maker.

Legal Capacity to Make Will
What the law requires of will-makers is that they be of sound mind, memory and understanding to make a valid will. A will maker should:

1. understand the nature and effect of a will;
2. know the nature and extent of their property;
3. comprehend and appreciate the claims to which they ought to give effect; and
4. are not affected delusions that influence the disposal of their assets at the time they are making their will.

A mere diagnosis of Alzheimers will not of itself mean that a will-maker lacked testamentary capacity to make a will. It will depend on the courts analysis of the above 4 criteria with respect to the will-maker personally based on the available evidence such as reports and notes by doctors, carers etc.

If the lawyer suspected that your family member showed signs of lacking the relevant level of capacity he should have sought a formal medical assessment of their capacity before drafting the will.

Family Provision Application
If you are the spouse, child or dependant of the deceased then you may make a family provision application if you believe you are inadequately provided for under the will.

 

[Sarah J]

Hi Eugene,

Sophea already gave you a pretty detailed answer. In short, you will need to 1) request a copy of the will from the executor; 2) check whether it is satisfies the formalities (two witnesses present - mentally and physically; signature of the deceased; attestation clause); 3) argue lack of testamentary capacity if you believe the deceased had memory problems.

In terms of arguing lack of testamentary capacity: Is it okay for a testator (will maker) to have memory problems or health issues that affect their mental capacity as long as the testator is capable at the time of signing the will that:

- They are in fact making a new will that will revoke previous wills;
- The significance of making a will (i.e. that leaving assets to one person will exclude other people from claiming it)
- Bear in mind any other potential claimants to the property, in particular, previous beneficiaries and dependents;
- Able to comprehend the extent of their property (e.g. not think that they own $17,000 when in fact they really own $100,000)

These are the basic requirements for testamentary capacity. Once they are satisfied, and as long as there are no other factors (such as undue influence, fraud, suspicious circumstances) then the Will will be valid.

There is a general presumption that testators have absolute freedom in disposing of their property. Hence, courts are unwilling to intervene unless it can be shown that the testator did not make the Will out of their own free volition.

If the new Will is valid, then it will automatically revoke all previous wills and testaments unless it expressly says otherwise.

 

[Eugene]

Thank you Sarah J and Sophea for your very helpful legal answers. I appreciate your insights.