One of the most important legal documents that someone can make is a will. However, in order to be able to make one, it must be determined that everyone who is involved with creating it has full mental capacity. Sometimes the capacity of individuals is brought into question when they are elderly and appear to be making decisions and choices to their will that appear to be strange and out of character.
This may include doing things like removing key members of their family from a will, even though they would be fully entitled to inherit the estate under intestacy rules. Please visit this link to have a better understanding of Testamentary Capacity in Estate Planning and all the other details you may need.

Disinheriting key family members

While the act of being disinherited is only something that ever seems to happen in the movies or in novels, it is something that does happen in real life but is not as straightforward as it may appear. This is because there are legislation and legal rules in place that mean that anyone who was being supported financially prior to death is legally entitled to receive a certain level of reasonable provision in the will. For instance then, if a spouse had been the main breadwinner within the household, they would be obliged to a certain amount of the estate in the event of their partner’s death. 
The purpose of having a will in place is for an individual to be able to make their own decisions about what happens in the future, after their death to their estate. Anyone that has a genuine reason as to why they do not want it being passed onto a close member of their family and are not financially supporting them, is well within their right to disinherit them. In order to make this happen though, the will would need to be amended so that it can stand up to any legal challenges that would likely be made. 

Disputing a will after being disinherited

Unfortunately, it is quite often the case that family members become embroiled in disagreements after the death of a loved one, whether that be a parent or a sibling. This is more likely to be the case where a family member or member has been left out of the will. Anyone left out of a will is more than within their right to pursue it if they believe that they have a right to some of the estate.
It may also be the case that someone who has been left out of a will questions the mental capacity of the person who produced it at the time of writing. They can argue that the individual was:
  • Not of the correct mind at the point of writing the will, thus taking the decision to leave someone out who they typically would not. It may be argued that the reason they were left out of the will was false or simply not fair. It may have happened as a result of a lack of mental capacity or poor mental health.
  • Influenced unreasonably by someone else in order to have them left out of the will. This is called fraudulent calumny and happens when an individual turns the person writing the will against another person so that they will financially benefit.

    Do Delusions Cause Disputes Over Estates?
    Do Delusions Cause Disputes Over Estates?

Clitheroe v Bond (2020)

This legal case highlights how a daughter (Bond) successfully made a challenge against her mom’s will after being left out of it. Upon her death, the mom (Clitheroe) left behind her an estate that was valued somewhere in the region at around $350,000. However, her will stated that everything from her estate should be left to her son – he was also the executor of the will. There was an accompanying letter that clearly stated what her wishes were and the reasoning why she left her daughter out of her will. This included several accusations that her daughter was a ‘spendthrift’ and a ‘shopaholic’
The daughter opposed this decision by making the claim that her mom did not have testamentary capacity at the point at which she wrote her will. The evidence that she put forward was based on the idea that her mom had an affective disorder that she experienced after the death of another of her children. As a direct result of this disorder, it was argued that the mom experienced delusions and bouts of depression in relation to her daughter. 
It was found to be the case that because the mom experienced regular delusions, her ability to make rational decisions had been compromised and so the will that she wrote was considered to be legally invalid. It was therefore agreed that her estate should be distributed equally amongst her two intestacy lines, meaning that it was split between both the brother and the sister.

Protecting against this happening

In order to make sure that all of the instructions on a will are carried out to the letter after death, it is important to get the help of an expert solicitor who has many years of dealing with wills underneath their belt. This is particularly poignant when the person writing the will has taken the decision to disinherit a key family member that is close to them. In this kind of circumstance, a good solicitor will go through the situation in detail in order to make sure that the individual fully understands the full extent of their decision. Once this has been discussed, they will be able to advise on the best course of action from there on in. 
The process may include the drafting of a wishes letter that is included with the will in order to clearly state the exact reasons as to why the decision to disinherit a close family member was made. Where necessary, the solicitor will make the suggestion that medical evidence is included with the will in order to fully prove, beyond doubt, that at the time of writing, the individual had full testamentary capacity.


Please enter your comment!
Please enter your name here