When your rich uncle leaves you out of his will the obvious explanation is that he was nuts.....
Brennans solicitors
Lawyers - Property, commercial, disputes, Wills and estates
Brennans solicitors
Lawyers - Property, commercial, disputes, Wills and estates
Brennans solicitors Lawyers - Property, commercial, disputes, Wills and estates
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Paul Brennan is the principal of Brennans Solicitors, a law firm located on the Sunshine Coast, Queensland, Australia, where he practices with his wife, Diane in the areas of business law, litigation, property and wills/estates.
Over the years, by working in various countries, he noticed how similar the law can be. He set out to explain the law in a simple and often humorous way.
He has written several books about law and lawyers.
Further details of his profile can be found on Linkedin.
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. A beneficiary receiving substantial benefit was a controlling force behind instructions to make the will e.g. the beneficiary took a relative to instruct a lawyer and was in lawyer’s office when the will was signed.
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.
© Paul Brennan 2018. All rights Reserved.
Extract from "The Art of War, Peace & Palaver: The Contentious Guide to Legal Disputes"
