Avoid inheritance disputes - use a lawyer!

Posted: 28th June 2019

PenA man succeeded in refuting claims that he brought pressure to bear on an elderly friend before she made a will in his favour. However, he would have found that task a great deal easier had he engaged a practising solicitor to draft the document and give independent legal advice.

The man had known the woman for many years as a neighbour and moved in with her after she suffered a fall, becoming her main, but unpaid, carer. She was in her 90s and had not much more than a year to live when she signed a will appointing him her sole executor and beneficiary.

Although they had had no contact with her for over 50 years, two of her nephews challenged the will on the basis that the man had subjected her to undue influence. They claimed that he had led her to believe that, unless she benefited him in her will, he would move out and that no one else would look after her.

In ruling on the matter, a judge noted that it counted against the man that he had not involved a practising solicitor in the process of advising the woman and making the will. He was in some respects an unreliable witness and there was evidence that the woman had subsequently changed her mind about benefiting him, although no change to her will was made prior to her death.

Whether the man deserved to be a beneficiary of the will was irrelevant to the issue of whether he had exerted undue influence. However, the Court noted that it was unsurprising that the woman had chosen to benefit someone who had been kind to her, rather than distant relatives with whom she had lost contact.

In upholding the validity of the will, the Court found that there was nothing suspicious about it that called for an explanation. Despite the absence of a practising solicitor, the will had been executed in the presence of a doctor and a retired government lawyer. On the balance of probabilities, the will represented the woman’s true intentions on the day of its execution and she had not been coerced into making it.