Legal repercussions may arise if wills are left unwritten

Published 22 Aug 2013

A recent court case demonstrates how important it is to not only draft your will in full, but to do so before it’s too late, considering there is a real possibility that delaying your will could result in professional negligence claims.

The case arose after the solicitor put off fulfilling the wishes of the Ms C, the testator, to alter her will before she passed. However, the solicitor asserted that he put off altering the will because he didn’t believe the testator had the appropriate mental capacity to carry out the drafting of the will.

Shrugging off the decision of the solicitor, Ms C proceeded to write her own will, which was drastically different than the previous will that was written with the help of the solicitor eight years before.

In this new document, Ms C left the majority of her estate to her step-granddaughter, leaving many of the original beneficiaries without much inheritance.

This led to a serious inheritance dispute in which the descendents named on the original will contested the claim that the altered will should hold up in court, on the grounds that the homemade will was drafted during a state of diminished capacity.

Analysing the ruling

By the end of the court sessions, the judge agreed that the defendant had not properly followed the instructions laid out by Ms C. Because he delayed the action to alter the will per the request of the testator, he was found guilty of negligence in his duties to carry out the will.

The ruling showed that the judge decided the defendant had accepted the decision to alter the will, but put the process off for so long that the testator’s diminished capacity could have been expected.

Because the defendant understood the rules of capacity, “it was [his] obligation to resolve the capacity issue with reasonable expedition”, the judge ruled.

The case brought up interesting points regarding how long a wills expert should put off writing the document, considering the age of the testator. Ms C, who was 90 years old, should have been helped long before her death, and the court ruled that the defendant did not carry out her wishes in time.

“What constitutes a reasonable period of time is case specific,” the judge said, but that overall, “the older the client, in general, the greater the urgency”.

Contesting wills lawyers are well versed in such cases, and can you help you understand how a will should be carried out.

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