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Sunday, May 31, 2015

What effect does alcoholism have on a person's ability to make a will?

What effect does alcoholism have on a person's ability to make a will? A reader recently asked me about this. Her question and my answer are below:

"My husband and his brother were disinherited in their mother's will and they recently found this out when she passed. She left everything to a friend of hers and they're wondering if they can fight the will. She was an alcoholic. Do they have any grounds to stand on as she was probably not in her right mind when she made the will up?"

This is a tricky situation. The question you've asked, which is whether a will can be overturned because the deceased was an alcoholic, can easily be answered by one word - "no". Just the fact that the deceased had alcoholism is not, in itself, enough.

The law says that the deceased had to have had capacity (which would include being sober) on two occasions. One is when she gave instructions for her will to be made, and the other is when she signed the will. Saying that she "probably" was not in her right mind is not enough to take away her right to make a will. She might well have been completely sober on both occasions.

Challenging the will on the basis that she was impaired by alcohol on one or both of those occasions can be done if there is appropriate evidence. Did you or another family member have contact with her on those days? Is there other evidence available for those days, such as an arrest for impaired driving or a trip to the detox centre or a hospitalization?

You didn't say whether your mother-in-law used a lawyer to make the will, but assuming that she did, the lawyer will have assessed her for capacity on the two occasions I mentioned above. At least, I certainly hope the lawyer did that, as that is our responsibility! The lawyer should have made notes about his or her observations of your mother-in-law's condition. The lawyer may not have known about the alcoholism, but hopefully would have noticed any impairment. The lawyer's notes supporting her ability to make the will would go against your evidence in a trial, so your evidence needs to be solid.

However, having said all of that, it does seem to me that leaving the estate to a friend could be an issue leading to a challenge, particularly as it seemed to come as a surprise to her children. I have no facts to go on, but I'd like you to think about the following: How long had she known the friend? A lifelong friend is very different from a new or recent person in her life. Was the friend actually a romantic interest of hers? How often did they see each other? Did they live together? Perhaps she considered herself to be in a couple with the friend. Was the friend more of a caregiver or more of a companion? Was she giving money to the friend during her lifetime? Did they have any joint assets? What was her relationship like with her sons?

All of these things matter because we all have the freedom to leave our estates to our friends if we wish to (subject to supporting legal dependants). It's not unusual for someone to leave money to a person they've been friends with for many years. But sometimes we are tricked or coerced into leaving our estates to "friends", and we count on our family members to help us if that happens. The problem is that it is almost impossible to know whether coercion or trickery happened, or whether the gift to the friend was completely voluntary. All you can do is examine the facts of the case and see what seems logical.

It's quite possible that alcoholism made your mother-in-law more vulnerable to pressure.

If things just don't add up, you might want to discuss it with a lawyer to get an opinion based on all of the facts and evidence at hand, and to find out what it would cost.

As a final note, if your mother-in-law lived in BC, the will might be challenged on fairness grounds. This is something you would definitely need a lawyer for.

1 comment:

  1. Excellent response that could IMO be applied to other situations as well.


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