The majority of Wills written shouldn’t create a problem when the person making the Will, the testator dies. Most are perfectly fair, leaving everything to a spouse, and failing that the
children equally. Even if the mental capacity of the testator wasn’t great, in the majority of cases, it is unlikely to be questioned. However,the situation is very different, when a testator
has unusual wishes. Examples of this, could be leaving out a son or daughter completely, or, making large gifts to charities rather than their children.
Assuming a person writes a Will with “unusual wishes”, any disgruntled potential beneficiaries like the children, are likely to seek legal advice after the death, as to the validity of the Will. Such advice is unlikely to be cheap, and in the interests of the legal professional to investigate fully. So what are the first questions they may ask?
Typically, they will enquire about the signing and witnessing of the Will? Was this carried out professionally with witnesses present? Was there anything unusual about the signing? Assuming everything is correct here, they may well ask about the testator’s health and capacity next.
Anything on the testator’s medical records about lack of capacity, such as a failed assessment, could be the sort of evidence they require. On this point, people may be very reluctant to have such a test for fear of the results, which in itself may create problems for them going forward.
The legal case Banks v Goodfellow now 150 years old, established three clear principles required when writing a Will:
- The testator must understand the nature of the Will and its effect.
- They must understand the extent of the property they are disposing in the Will.
- Be aware of any dependents the testator would normally be expected to provide for in the Will and free from any delusion of the mind that would cause the testator not to want to benefit such people.
In conclusion therefore, when making an “unusual” Will which might be questioned, these points are even more important that normal.