Seven things to check when you are left out of a will

When your rich uncle leaves you out of his will the obvious explanation is that he was nuts. However, if the will appears rational and correctly executed the Court will presume that the deceased was mentally competent unless there are suspicious circumstances.

The nature of the suspicious circumstances can depend on the inventiveness of the deceased’s family, friends, and neighbours but here are seven examples:

1.    Enfeebled physical and mental state e.g. medical evidence of significant cognitive impairment and continual deterioration.
2.    Evidence of confusion e.g. concerns by friends that the deceased would sign anything put in front of him.
3.    Lack of care in preparation by the lawyer e.g. No written record or over 5 (make that 15) typos.
4.    A carer left a substantial benefit.
5.    Terms of the will departed significantly from previous wills e.g. it excludes persons who you would expect to inherit.
6.    Questions concerning the witnesses e.g. a doctor witnessing a will should not only be satisfied as to the capacity and understanding of the deceased but also make a record of his examination and findings.
7.    Beneficiary receiving substantial benefit was a controlling force behind instructions to make the will e.g. took relative to a lawyer and was in lawyer’s office when the will was signed.

But once you establish circumstances supporting a well-grounded suspicion the court will look closely at the evidence to decide if the deceased knew and approved of the contents i.e. an awareness by the deceased:
1.    That a will was being made.
2.    Of the estate and its value.
3.    Of the persons who could be expected to receive an inheritance in the circumstances; and
4.    Of the strength of the claims of potential beneficiaries.

The Court must be satisfied that the will reflects the real intention of the deceased. Even the craziest uncle can have a lucid interval at about the time that he excludes you from his will.

Moral: keep your enemies close and your crazy old uncles closer.

(c) Paul Brennan 2016. All rights reserved.

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Paul Brennan, lawyer

sponsored by Brennans solicitors - a Queensland, Australia law firm - Individual Liability limited by a scheme approved under professional standards legislation.
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