*Antony was in the later stages of his life when *Michael, the son of a family friend, began providing support and care for him.
Antony had an existing will that left small legacies to two charities and the rest to his nieces and nephews – but this will was not to be his last.
Michael, having grown close to Antony, engaged a solicitor to prepare a new will for Antony. Michael advised the solicitor that Antony wanted to leave his whole estate to his daughter, stressing that the will needed to be made urgently, as Antony was unwell.
A new will was prepared for Antony based on Michael’s instructions, and signed by Antony in front of the solicitor, while both Michael and Michael’s mother watched on.
As it happens, Antony didn’t have a daughter. In an insidious attempt to gain benefit from the new will, Michael led the solicitor to believe that his mother was Antony’s daughter – which of course wasn’t the case.
After Antony’s death and years of expensive litigation, the court found that the later will, which stood to benefit Michael and his mother, was made under suspicious circumstances and that Antony did not know and approve of the terms of the new will.
It’s not surprising then, that the number of wills being contested is up by 50 per cent since 2015. Source: Getty
At NSW Trustee & Guardian, we see more and more examples of this, where the estates of older Australians become a battleground for benefit.
It’s not surprising then, that the number of wills being contested in NSW is up by .
There are many factors driving this increase, and primary among them is Australia’s ageing population. More people are living longer, which means an increase in age-related illnesses such as dementia and Alzheimer’s.
So, it follows that we see more wills being contested on the basis of capacity. This is when the will-maker’s ability to make a valid will – to understand the nature of the will, the extent of their property and to make appropriate decisions about their beneficiaries – is called into question.
Capacity law suites are expensive, and though there is sometimes good reason for them, – as in Antony’s case – we are always saddened by the cases we see that could have been avoided.
The good news is that although the number of wills being contested is up, it is a small number in comparison to the number of wills that are upheld without issue – approximately 95 per cent.
The best thing you can do now to avoid being in that smaller group of contested wills is to get professional advice from someone with experience in wills and estates.
This person should advise you about potential claims upon your estate, take steps to guard against your wishes being the subject of influence and coercion by third parties, and take steps to be satisfied you have the required level of capacity to make the will.
This will involve asking appropriate questions to test capacity and, in some situations, obtaining a medical report which could be available as evidence in support of the will when the time comes.
Unfortunately, we also see cases go to court where someone has made their own will and there is a dispute about its meaning – that is, how the person intended their estate to be distributed.
There are many rules set out in legislation and in case law about how words and phrases in wills are interpreted, and how wills are interpreted as a whole.
This is why wills should be professionally drafted – it’s the best way to help ensure your wishes are clear, and your loved ones are protected.
Adam Dent is the Chief Executive Officer of NSW Trustee & Guardian.
*Names have been changed to protect real clients.
