Sun Tzu: The art of war is of vital importance to the state. It is a matter of life and death, a road either to safety or to ruin. Hence it is a subject of inquiry which can on no account be neglected.

Has your dad lost his marbles? If so, unless the court intervenes, it is all over for him making a will in your favour or changing an existing will to disinherit a few of your siblings as he does not have the mental capacity to do so. On the positive side once he has “lost capacity” you do not need to visit him so often to avoid losing out.

If you think your dad’s will may be challenged then your lawyer will want to ensure that he can prove that your father knew what he was doing.

Lawyers often send aged clients off to a doctor to witness the will and also they will ask questions (and take detailed notes).

The more complex the will or the change, the more “on the ball” the testator and lawyer must be.

A general suspicion of lack of capacity, e.g. age and/or illness is not enough for a court; there must be clear evidence of significant doubt that the testator had capacity.

The onus of proof weighs on those supporting the will. The court will look at any suspicious behavior (often helpfully supplied by an ex-wife) or suspicious circumstances.

Trials are awash with evidence of bitter relatives and concerned neighbors together with medical evidence. As Sun Tzu advised, choose your allies carefully and keep your intentions secret and flexible to avoid being undone by treachery. 

Your lawyer with his notes will be a star witness. 

Your lawyer could use his own sanity as a benchmark but that can be a very low hurdle. The chances of your lawyer being sued in borderline cases by disinherited beneficiaries are quite high and therefore expect your lawyer to put effort into producing evidence in support of the will. 

Therefore do not expect any senior discounts next time you wheel your old decrepit dad or uncle in for a will. Your lawyer will check to ensure that their client is sane whereas normally there is no such obligation. 

(c) Paul Brennan 2020. All rights Reserved.

 Extract from "The Art of War, Peace & Palaver: The Contentious Guide to Legal Disputes" by Paul Brennan

NEW BOOK "THE ART OF WAR, PEACE AND PALAVER: THE CONTENTIOUS GUIDE TO LEGAL DISPUTES"