Case: Will declared invalid by Court
Written by: Kimberley Perks
Post date: 28th July, 2021
Frank knew his mother, Lorna, had made a Will as he had a copy of it. The Will appointed Frank as the executor and provided him the whole of Lorna’s estate as sole beneficiary. Lorna was diagnosed with age related dementia in 2013 and her condition worsened over time. In 2016, Lorna could no longer look after herself and was admitted into a nursing home. Within six months Lorna’s condition had deteriorated to the point that, on most days, she was unable to recognise her only child, Frank.
Lorna’s sister, Nancy, disagreed with Frank’s decision to place Lorna in the nursing home. Nancy wanted Lorna to move into her place where she could care for Lorna whereas Frank felt that Lorna’s needs were beyond Nancy’s abilities and would place an unreasonable burden on Nancy. During a visit with Lorna, Nancy believed Lorna had asked for help to make a new Will and that Lorna wanted to divide her estate between Frank and Nancy’s three children. Nancy arranged for Lorna to sign a new Will prepared, as Nancy believed, in accordance with Lorna’s wishes. The Will appointed Nancy as executor of Lorna’s estate.
Lorna died in 2018 and Frank believed he held a copy of her last Will. He was shocked to discover his mother had made a new Will only two months before her death and that the new Will substantially reduced his entitlement.
Frank sought advice from Richard Kent, a Partner at Mackinnon Jacobs Horton & Irving lawyers. “Frank came to me with concerns regarding the validity of Lorna’s last Will,” explained Mr Kent. “He thought that Lorna’s dementia was such that she could not possibly understand that she was signing a Will”. Frank was advised to take legal action to prevent Nancy obtaining a grant of probate over the disputed Will.
With the assistance of his lawyers, Frank was successful in having the disputed Will declared invalid. The Court found that Lorna did not have the required mental capacity to understand she was making a new Will and therefore that Will was invalid. “The effect of the Court’s decision was that the disputed Will had no legal effect. Lorna’s previous Will became Lorna’s last Will and Frank was able to act as executor of his mother’s estate and receive the entitlement his mother originally intended for him,” said Mr Kent.
“All cases involving disputed Wills are difficult,“ he said. “However, as Frank sought advice from our firm almost immediately, we were able to take action before probate over the disputed Will was granted to Nancy and therefore prevent the Estate being administered by her.” Mr Kent added that, in Frank’s case, an alternative course of action may have been for Frank to file a Testator’s Family Maintenance claim against the estate. However, the appropriate course of action to take will differ from case to case.