After my father’s death I discovered he had re-written his will, giving 90% of his estate to Harriet, and only 10% to me and my two siblings. An earlier version of my father’s will (which I had seen) divided everything between me and my siblings equally, save for a small charitable donation to the SPCA. The new will was prepared by a lawyer unknown to me, not my father’s long-standing solicitor. It was executed five weeks before his death.
My siblings and I are angry about the situation. Our father’s estate is substantial (approximately $2,500,000). Would it be worthwhile challenging the will?
A: I am sorry to hear of your father’s passing.
It is possible that a court may set aside the new will if the judge finds that your father was subject to undue influence from Harriet when he prepared the new will. Undue influence is pressure exerted on the will-maker at the time the will is prepared. The pressure does not need to be as significant as a threat of violence or force, but it needs to have the effect of overbearing the testator’s free will.
In deciding whether there has been undue influence the judge will look at all the evidence. The personalities and circumstances of the testator and the person alleged to have applied the pressure are relevant.
Relevant factors
Factors pointing to undue influence here include:
The fact that your father was elderly, lived alone and was experiencing loneliness and depression after his wife’s death. These factors make your father more susceptible to influence.Your father had developed a close new friendship with Harriet. After his cancer diagnosis he had become at least partially dependent on her to assist him with meals, transportation, and his garden.The new will differed substantially from the earlier version, and was executed close to the date of his death when he was unwell.
Harriet was present when you visited your father. This prevented him from having an open discussion about his affairs with you.
The fact that the will was prepared by a different solicitor is also a red flag. The solicitor may have been unfamiliar with the history of the matter and the family dynamics. Having said that, most solicitors these days are very cautious when preparing wills. They will usually ask clients detailed questions about their family and background, and probe them about the wishes they are expressing.
In preparing the application, you should request a copy of any file notes from the solicitor who prepared the new will, as these may provide more information about what your father told (or omitted to tell) the solicitor about his wishes.
It would also be worthwhile producing evidence from a psychiatrist to comment on your father’s susceptibility to undue influence. The psychiatrist should consider any medical notes available commenting on your father’s depression.
Timeframes
If you decide to proceed with a challenge to the new will, you should file the application promptly, preferably within six months of the date of death. Executors can apply for probate once the death certificate is available, but are required to wait six months before distributing assets to the beneficiaries.
Other considerations
It would be worth checking your father’s medical notes to see if they contain anything that may indicate a decline in his capacity around the time the new will was made. If there is any evidence of incapacity, this would be another ground on which to challenge the will’s validity.
It seems Harriet did provide companionship and assistance to your father in his final years. It could be worth acknowledging that she should receive a smaller portion of the estate.
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