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When someone you love dies, it is always a very difficult time but this can be made even more difficult if there is a problem with their Will.
Making a new Will just before dying may not be a problem. If your loved one knew they were dying and they wanted to make a Will which accurately reflected their wishes and there were no issues with their capacity their Will should be absolutely fine; provided it is legally valid.
But in circumstances where someone changed their Will just before they died and there are questions about whether their new Will actually reflects their wishes, or if there are questions about their capacity, this could be an issue.
We’ll look at some of the risks and associated problems when a new Will was made just before someone dies and how those problems could be resolved.
The problem is that the Will could be challenged. Challenging a Will is also known as Contesting a Will. There are a number of reasons why a Will may be contested, but only some of them relate to disputing a Will that has been made shortly before someone dies. They are:
- Testamentary capacity
- Undue influence
- That the person did not know and approve the contents of the Will
- The Will is fraudulent or forged.
Testamentary Capacity is the legal term used for deciding if someone understands what they are doing when they make a Will. That includes understanding the impact of the decisions they are taking when making their Will. You need to have capacity to make a Will or else your Will is not valid.
If there was a question that the person who changed their Will just before they died lacked capacity, there is probably a valid reason to dispute the Will.
A lack of capacity can be difficult to prove. If on the face of it, a Will is properly executed and appears rational, Capacity is generally presumed unless it can be proved otherwise. You would need medical evidence to prove that your loved one or family member lacked capacity before they died or show that they had a condition that could affect their capacity such as Dementia or Alzheimer’s.
This reason for challenging a Will is that the reason the person who died changed their Will was because they had pressure put on them to do so. This is usually by someone who is added into the latest version of the Will.
A new Will that may look suspicious would be one where all the original benefactors were removed and one sole beneficiary was added.
Proving undue influence can be extremely difficult. Amongst other things, you have to show that no other explanation for the changes in the Will is possible. This will be problematic without strong evidence to support your claim.
Contents of the Will Were Not Known and Approved
There are some circumstances where the person who was making their Will could not be aware of the contents of it. In England & Wales, Courts usually presumes that the person who signs their Will in the presence of two witnesses knows its contents, but in these circumstances, that presumption is not made:
- If they are deaf and or mute
- If they are paralysed and can’t speak
- If they are blind or can’t read or write
- If the Will was signed by someone else because the person who died asked them to.
If only part of a Will was read to someone, the part that was not read could be found to be invalid as they might have no knowledge of its contents.
The Will is Fraudulent
There is a possibility that the Will was forged or fraudulent and changed without the knowledge of the person who died. Because forging a Will is classed as fraud, you have a higher burden of proof as this is a serious charge.
To prove that the Will is forged or fraudulent, you will usually need to use a handwriting expert to try to show that the signature on the Will is written by someone else.
You’ll have to provide extracts of writing and signatures by the person who died to compare it to. This evidence could be difficult to obtain.
What Can You Do?
If you think that there is a problem with the new Will that was written, you should seek legal advice as soon as possible.
There may be time limits involved with contesting a Will, so as soon as you have concerns, you should take legal advice.