Is this will valid

youyangs

Will try to be brief as possible.

- Main beneficiary had been absent from testatrix's life for 40 years. Returned a few months after death of testatrix's husband and first ever will written a year later (2019).
- Will drafter referred to testatrix by main beneficiary
- Will drafter and main beneficiary have been close friends for decades and used to also work together
- Will makes beneficiary Executor and if they didn't want the role, then the will drafter would be Executor. Both have intermeddled.
- Will drafter was a witness to the will
- Only child largely excluded, barring a small cash gift

- Testatrix had multiple physical and mental complications
- Refused treatment in hospital, physical and verbally attacked staff, visitors and other patients
- Multiple examples of hallucinations
- Had a life-long belief that there was a family conspiracy against her, resulting from her parent's divorce in the 1960s. In latter years attached her only child to the "conspiracy", for not taking sides
- Believed her only child had the power to keep her in hospital, prevent her from going home, or make her live in a care home
- Was suffering complicated grief and still thought her husband was alive (died 2018) when originally going into a care home, months after his death. Staff at the care home requested a death certificate as proof. Testatrix had to be shown a copy of the funeral Order of Service, which she attended. Not long after this, the long-lost friend appeared back on the scene. As late as 2019, there were documented episodes where the Testatrix was claiming her husband was still alive. Also documented evidence of "crying every day" and not wanting to live any longer, so they could be reunited.

To me, the circumstances of will preparation seem suspicious. The will drafter acted in their "own interest" and there is also a "conflict of interest". No medical evaluation was undertaken. The will drafter was not a legal professional. The will instructions stated a default beneficiary, which was added as a substitutional provision in the will. 

tacpot12

I can't see how the will drafter acted in their own interests if they can't benefit from the will. If anything, by offering to act as an executor, they are setting themselves up for extra work. It may be work they are willing to do for their friend, but it is still extra work.

It's not clear whether the default beneficiary is the friend or someone else, or why a substitution provision would be used to name the friend as the default beneficiary. A subsitition provision is usually used to say who inherits if a named beneficiary cannot (i.e it says who is substituted).  

However, there is more than a suspicion that the testatrix may not have had capacity to make a will. However, it will be difficult to prove that this is the case, and the will drafter may say that they advised the Testatrix not to make a Will that could be challenged by her daughter. The Mental Health Act requires that people are helped to make the decisions they want to, providing the understand the implications of the decision, and this includes being helped to make decisions that the person helping thinks are unwise.

I think the only child has two possible courses of action: 

1. be friendly with the beneficiary and persuade them that that they should be given more than their mother agreed to leave them in the will. If the friend is aware of the mental state of the testatrix and the fact that there was no conspiracy, then this will be much easier. A deed of variation could be made (that the child should pay for), so that they inherit more than the will provides for. 

2. issue a formal challenge to will on the basis that they have not been provided for adequately. This might difficult if the child has a good job, a home they own, savings and a pension, and will expensive regardless. They will need professional legal advice before embarking on this course. Solicitors will usualy give 30 minutes of free time to advice on how they can help with any legal problem, but the most important question to ask is how much will they charge for their help. 

youyangs

Perhaps no “own interest”, but certainly a “conflict of interest”?

tacpot12

An unqualified, unregulated Will Drafter is not prevented from helping the Testatrix from making a Will if they have a conflict of interest, and the conflict of interest doesn't invalidate the Will. 

However, the executor could be sued if they have a conflict of interest and do not ignore this conflict when exercising their executorship of the will. It seems unlikely that the main beneficiary would sue, and child could only sue if they weren't passed the small bequest of cash that the Will leaves to them. 

jimbo6977

Likely it's valid until a court says otherwise, but getting to that point will be difficult and expensive. 
Who is the other witness to the will?

theoretica

As pointed out, the main question about the will seems to be whether she had mental capacity to make one - which is not the same as having complete metal capacity over all aspects of her life.  As I read the timing, she was in a care home at this time, so presumably under medical supervision which could be a source of testimony if the will were challenged.  However, if there was a longstanding separation from her family including her child, then that seems support that her action in leaving her money elsewhere was in keeping with her wishes.

Keep_pedalling

tacpot12 said:

I can't see how the will drafter acted in their own interests if they can't benefit from the will. If anything, by offering to act as an executor, they are setting themselves up for extra work. It may be work they are willing to do for their friend, but it is still extra work.

It's not clear whether the default beneficiary is the friend or someone else, or why a substitution provision would be used to name the friend as the default beneficiary. A subsitition provision is usually used to say who inherits if a named beneficiary cannot (i.e it says who is substituted).  

However, there is more than a suspicion that the testatrix may not have had capacity to make a will. However, it will be difficult to prove that this is the case, and the will drafter may say that they advised the Testatrix not to make a Will that could be challenged by her daughter. The Mental Health Act requires that people are helped to make the decisions they want to, providing the understand the implications of the decision, and this includes being helped to make decisions that the person helping thinks are unwise.

I think the only child has two possible courses of action: 

1. be friendly with the beneficiary and persuade them that that they should be given more than their mother agreed to leave them in the will. If the friend is aware of the mental state of the testatrix and the fact that there was no conspiracy, then this will be much easier. A deed of variation could be made (that the child should pay for), so that they inherit more than the will provides for. 

2. issue a formal challenge to will on the basis that they have not been provided for adequately. This might difficult if the child has a good job, a home they own, savings and a pension, and will expensive regardless. They will need professional legal advice before embarking on this course. Solicitors will usualy give 30 minutes of free time to advise on how they can help with any legal problem, but the most important question to ask is how much will they charge for their help. 

There are other reasons that a will can be challenge, and from what has been said I would have thought the testator lacked the capacity to make a will or she was under undue influence to make the will the way she did would form a stronger base for a challenge, and there may be a strong chance of success if their is evidence to back this up such as her medical records. 

Legal advice needs to be sort ASAP.

elsien

tacpot12 said:

I can't see how the will drafter acted in their own interests if they can't benefit from the will. If anything, by offering to act as an executor, they are setting themselves up for extra work. It may be work they are willing to do for their friend, but it is still extra work.

It's not clear whether the default beneficiary is the friend or someone else, or why a substitution provision would be used to name the friend as the default beneficiary. A subsitition provision is usually used to say who inherits if a named beneficiary cannot (i.e it says who is substituted).  

However, there is more than a suspicion that the testatrix may not have had capacity to make a will. However, it will be difficult to prove that this is the case, and the will drafter may say that they advised the Testatrix not to make a Will that could be challenged by her daughter. The Mental Health Act requires that people are helped to make the decisions they want to, providing the understand the implications of the decision, and this includes being helped to make decisions that the person helping thinks are unwise.

I think the only child has two possible courses of action: 

1. be friendly with the beneficiary and persuade them that that they should be given more than their mother agreed to leave them in the will. If the friend is aware of the mental state of the testatrix and the fact that there was no conspiracy, then this will be much easier. A deed of variation could be made (that the child should pay for), so that they inherit more than the will provides for. 

2. issue a formal challenge to will on the basis that they have not been provided for adequately. This might difficult if the child has a good job, a home they own, savings and a pension, and will expensive regardless. They will need professional legal advice before embarking on this course. Solicitors will usualy give 30 minutes of free time to advice on how they can help with any legal problem, but the most important question to ask is how much will they charge for their help. 

* Mental capacity act, not mental health act. And the presumption is that the person has capacity unless evidenced otherwise.

This is the current guidance and relevant legislation. You might want to check whether you feel this case applies to your situation and then take some legal advice.

https://www.weightmans.com/insights/confirmation-of-the-test-for-mental-capacity-to-make-a-will/

youyangs

tacpot12 said:

An unqualified, unregulated Will Drafter is not prevented from helping the Testatrix from making a Will if they have a conflict of interest, and the conflict of interest doesn't invalidate the Will. 

However, the executor could be sued if they have a conflict of interest and do not ignore this conflict when exercising their executorship of the will. It seems unlikely that the main beneficiary would sue, and child could only sue if they weren't passed the small bequest of cash that the Will leaves to them. 

Doesn't the main beneficiary being a close friend of the Will Drafter create the conflict though? Especially as the main beneficiary referred the testatrix to the Will Drafter and the Will Drafter witnessed the will.

youyangs

theoretica said:

As pointed out, the main question about the will seems to be whether she had mental capacity to make one - which is not the same as having complete metal capacity over all aspects of her life.  As I read the timing, she was in a care home at this time, so presumably under medical supervision which could be a source of testimony if the will were challenged.  However, if there was a longstanding separation from her family including her child, then that seems support that her action in leaving her money elsewhere was in keeping with her wishes.

The testatrix had been in a care home, when the reunion with the long-lost friend took place. The only child of the deceased arranged the meeting. There was no separation from the only child. That child was dealing with quite a few aspects of her care, shopping for her and dealing with other areas.

There was however some evidence of delusional thoughts toward the child, as they wouldn't take sides in the imagined family conspiracy and was considered falsely, a powerful person in local healthcare.

youyangs

jimbo6977 said:

Likely it's valid until a court says otherwise, but getting to that point will be difficult and expensive. 
Who is the other witness to the will?

The other witness was an 82 year old neighbour.