News & Views

Don't Delay Making a Will Until You Feel the Hand of Mortality Upon You

Far too many people put off making a will until ill health strikes and reminds them of their mortality. In a striking case on point, the High Court ruled that a will signed by a prosperous farmer when he was in his 80s and suffering from dementia was not worth the paper it was written on.

For many years prior to his death, the farmer made it plain to members of his family that he intended to leave all of his farmland to one of his sons – the farming son – and a share in a family construction business to the other – the businessman son. He made two wills reflecting that intention.

Following the untimely death of the farming son, however, he executed a final will by which he bequeathed 58 acres of farmland to the businessman son. He died, aged 84, not much more than a year after signing that document. The validity of the will was challenged by, amongst others, the farming son's widow.

Ruling on the case, the Court noted that the will was executed in the presence of a solicitor and a doctor. Each of its clauses was read over to the farmer before he nodded to indicate his assent and signed the document. The Court rejected claims that the businessman son had exerted undue influence over him.

In declaring the will invalid, however, the Court noted that the farmer was at the time suffering from moderately severe dementia and his condition had been deteriorating from week to week. The evidence cast doubt on the extent of his understanding and it was likely he lacked the mental capacity required to make a valid will.

The Court noted that, in reliance on his expected inheritance and in fulfilment of his father's wishes, the farming son had toiled long hours on the family farm, around which he had built his life. Even had the will been valid, the Court concluded that fairness would have demanded the 58 acres pass to the farming son's estate.

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