Neighbour Succeeds in Contesting a Friends Will After Mental Decline

Published 03 Dec 2012

Author: Richele Nelsen

We acted for a couple who sought our legal advice after finding out their close friend and neighbour had altered his Will just months prior to his death at a time where they believed his mental health was compromised. 

Our clients befriended the deceased when they moved into the neighbourhood some ten years before his death. The deceased lived alone and had no family. They became close friends and our clients provided extensive assistance to him in providing cooked meals and assistance around the home with cleaning, etc.  

To thank our clients for their friendship and help the deceased created a Will naming them the main beneficiaries of his estate. However, just months before his passing, the deceased altered his Will leaving all of his assets to charity.

In the months leading up to the time where the deceased’s altered his Will, there was a marked decline in his physical and mental health. The deceased had had a number of falls and other accidents which had led to a number of hospital admissions and attendances upon his local doctor. Based on this evidence we argued that the deceased did not hold the testamentary capacity required to create the most recent Will. In order to succeed in a claim arguing that a testator (i.e. the person creating the Will) did not hold the requisite testamentary capacity at the time of signing of the Will, you must show:

  • The testator was not aware of the precise nature and effect of the document (the Will); and/or
  • The testator did not understand the extent of their property that they are leaving to the beneficiaries; and/or
  • The testator did not understand those persons who would have a reasonable claim upon their property; and/or
  • The testator suffered from a “disease of the mind” (a condition that prevents them from making a rational decision).

We argued that based on the medical evidence we had gathered, that our client’s neighbour and friend did not understand the precise nature and effect of the Will when he signed it just months prior to his death. We were able to gather extensive medical evidence to show the deceased’s deterioration both physically and mentally leading up to the time he signed the Will.

Due to the case we had developed and put forward to the Executor of the Estate, they agreed to pay our clients 50% of the Estate in addition to their legal costs incurred in making the claim. This settlement was accepted by our clients who were happy to avoid further Court proceedings and a hearing. As a result of this settlement, they will walk away with over $200,000.00 as a legacy from their friend and neighbour.

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