Is this will valid

youyangs

elsien said:

* 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.

Thanks for the link. I've read the Clitheroe v Bond case and there are many parallels with this situation. Seems if a delusion is found and that played a role in the testamentary decisions, then a will may be invalid.

Alderbank

Does the daughter live in her mother's house?
Was she dependent on her mother in any way? Was she her carer? Did she have a job?
Which country is this? It is harder to disinherit children in Scotland.

With regard to witnesses, their role is only to observe the testatrix actually signing the will. They have no involvement in what is in the will or in any discussions while the will is being drawn up.

youyangs

No the child didn't live with the mother. There was no dependency, but there were promises of inheritance. Leaving a detriment to the child who was encouraged not to get property of their own, because of the future inheritance. An estoppel claim and Family Act 1975 were no pursued at the intestacy of the father, because of the continued promises and particularly the lack of capacity of the testatrix.

The country is England.

The witness in this case did have involvement in the will and discussions while it was being drawn up. They wrote the will and it included a main beneficiary who was their close friend of many decades. Not forgetting that the beneficiary referred the testatrix to the will writer.

Sarahspangles

It’s not unusual for wills to be drafted by non-professionals and in such cases getting help from a friend of a friend and borrowing a neighbour as witness must be common.  

In this case 2+2 may in fact make 5.  However the core issue is whether the relative had capacity to make a will, and if they didn’t, whether the relatives who have been passed over for t most of the inheritance can prove this, and if they can whether the risk of losing an action is outweighed by what they stand to gain if the will is set aside.

youyangs

Perhaps all true Sarahspangles, but the testatrix thought the non-professional was a "solicitor" and called him such in messages. 

The risk of losing any action could be a risk for either the claimant or the defendants. Perhaps this 2+2=5 situation provides a very strong base for a negotiated settlement.

Sarahspangles

youyangs said:

Perhaps all true Sarahspangles, but the testatrix thought the non-professional was a "solicitor" and called him such in messages. 

The risk of losing any action could be a risk for either the claimant or the defendants. Perhaps this 2+2=5 situation provides a very strong base for a negotiated settlement.

There’s only one way to find out.  Is a real solicitor now involved?

youyangs

A highly respected solicitor said the following:

"I feel the circumstances are such that if an allegation of undue influence arose, it may be difficult to defend and could result in lasting damage to the friendship and the potential undermining of the will writers reputation/integrity.

The will writer should have been reluctant to act as a witness.

No matter how close a friend they are, the beneficiary should have referred the testatrix to someone independent to prepare the will.

If the potential testator was “still grieving” they should have been wary of preparing a potentially contentious will, mindful of the judge’s comments in Key v. Key, 2010."

elsien

youyangs said:

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.

Which is perfectly fine if the 82 year old neighbour knew the testatrix and their obligations as a witness. My 84 year old parent would be perfectly capable of witnessing a will and questioning if she felt something was not right. 

Sarahspangles

youyangs said:

A highly respected solicitor said the following:

"I feel the circumstances are such that if an allegation of undue influence arose, it may be difficult to defend and could result in lasting damage to the friendship and the potential undermining of the will writers reputation/integrity.

The will writer should have been reluctant to act as a witness.

No matter how close a friend they are, the beneficiary should have referred the testatrix to someone independent to prepare the will.

If the potential testator was “still grieving” they should have been wary of preparing a potentially contentious will, mindful of the judge’s comments in Key v. Key, 2010."

This advice implies that friend and beneficiary both acted in an unwise manner in the way that they approached helping the relative to make the will.  However it doesn’t comment on the core issue of whether the relative had capacity, and if they didn’t, what you could/should now do about it.

p00hsticks

youyangs said:

 Also documented evidence of "crying every day" and not wanting to live any longer, so they could be reunited.

In my experience, that's just a normal stage of grieving - it's not any indication of loss of mental capacity.