Don’t wait for the disease to appear before making a will
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Making a will near death and without professional help is an effective way to encourage arguments between loved ones after your death. As a case in the High Court has clearly shown, this is particularly the case if you intend to leave your estate outside of your immediate family.
The case concerned an exceptionally intelligent man whose life was marked by mental health problems. He was eloquent and talkative and had built his life on friendships with tenants in his stately home. His complex and difficult personality had led to an estrangement from his brother and sister, although contact between them was re-established in the weeks and months before his death.
He was hospitalized with a brain tumor that resulted in his death less than two months later when he is said to have made a will leaving everything he owned to a longtime friend and confidante. His siblings, who would have inherited his estate as his next of kin had he died without a will, initiated proceedings to challenge the validity of the document.
The court found that the will was properly executed. Arguments that the man was doing so badly that he could not have held the pen that was used to sign the document were rejected. The court also found that he had the mental capacity to draw up a valid will and found that treatment with steroids had brought about a temporary improvement in his condition in the affected area.
The beneficiary and one of the two witnesses to the will had acted underhand in some ways. They had initiated the drawing up of the will and hidden what they were doing from the man’s brother. However, there was no indication that they had exercised undue influence, and the court believed that the will ultimately reflected the man’s true will.
The court upheld the will and found that the man’s intention was to help what he considered to be his family. Although he was affected by progressive brain damage due to the tumor, he was able to understand and approve of the simple contents of the will. The document was read to him and he probably read it through as best he could before signing it.
Gardiner v Tabet & Anr. (2020]ewhc 1471 (Ch). In another case, the deceased’s wishes could not be fulfilled. in the Davey & Anr versus Bailey & Ors  EWHC 445 (Ch) one devoted couple had built considerable fortunes during their marriage. Each of them had made wills and left everything to the other. However, the documents were about a decade old when the woman died of cancer. The sad husband later suffered a fatal heart attack and only survived the wife by about four months. According to the statutes, the wife’s estate is transferred to the husband. After her death, he made an appointment with a lawyer to draw up a new will. However, such a will was not carried out before his death. Since the wife no longer lived to inherit his estate, the husband died without a will. The end result was that the couple’s entire fortune passed to the man’s next of kin, and the woman’s family received nothing. The wife’s siblings initiated proceedings on the grounds that the couple had given them substantial parts of their estate shortly before their death. The gifts were considered enforceable deathbed gifts as they were given by the couple in view of their impending death. On this matter, the court found that both the husband and wife were attached to their respective families, which were closely related. The evidence suggested that it was very likely that the couple intended that both families should benefit significantly from their estate. In rejecting the lawsuit, however, the court found that the strict criteria that must be met for a deathbed gift to be legally binding had not been met. The court expressed deep sympathy for the wife’s family, who had been de facto disinherited. However, nothing prevented her from receiving voluntary gifts from the husband’s estate when his family wanted to give them.
The content of this article is intended to provide general guidance on the subject. You should seek expert advice regarding your specific circumstances.
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