What if my loved one died just after making a new Will?

If someone dies very soon after changing their Will or making a new Will, questions may arise over its legitimacy, which can be very stressful at an already difficult time.

If your loved one knew that they were dying and wanted to change their Will or make a new Will to accurately reflect their wishes and relationships at the time of their death, there should be no problems.

However, occasionally the legitimacy of the new Will might be called into question, particularly by beneficiaries who feel that the new Will does not accurately reflect the interests and wishes of the deceased.

It is possible to Contest a Will if you feel that there is some issue with it. There are several reasons why someone might Contest a Will that was created very soon before death. These reasons will be discussed below. If you believe that any of these issues might apply to the Will of a recently deceased loved one, you should seek legal advice immediately.

Testamentary Capacity

In order to write a Will, a person must have a full understanding of what they are doing. If a person lacks Testamentary Capacity, it means that they lack the mental capability to write a Will. This might be due to dementia or Alzhiemer’s, for example.

If the deceased had a disease that affected their mental capability at the time of writing their new Will before their death, the new Will may be called into question.

However, it is difficult to prove that a deceased person lacked Testamentary Capacity if the Will appears to be properly executed and the decisions contained within appear rational. If you are concerned that your loved one lacked Testamentary Capacity upon writing their Will, you would need to provide medical evidence that they had a condition that could play into this.

Undue Influence

When someone writes a Will, it must be entirely of their own volition with no influence from an external party. If someone changes their Will to add a new person in because they feel pressured by that person to do so, then it is possible to question the legitimacy of the Will.

As with Testamentary Capacity, it is difficult to prove Undue Influence. You would need to prove that there is no other explanation for the changes made to the Will, which can be near impossible if its writer is deceased.

The deceased did not know the contents of the Will

Generally, the Court presumes that the writer of the Will knows and understands its content if the Will was written in the presence of two witnesses as required. However, there are some exceptions to this rule.

These exceptions may come if the deceased was deaf or mute, if they were paralysed, unable to speak, blind, unable to read or write, or if the Will was signed by someone else on request of the deceased.

In the above scenarios, it is possible that the deceased was unaware or partially unaware of the contents of the Will. Without this knowledge, the deceased would not be able to make sound decisions regarding the fate of their possessions.

The Will is fraudulent

If the Will was changed without the knowledge of the deceased, then it is considered fraudulent and will not stand up in Court.

The most likely way to prove that a Will is fraudulent is to take it to a handwriting expert who can determine whether it was truly signed by the deceased.

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