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Thursday, July 21, 2016

Does the court review wills that were made shortly before the testator died?

A reader recently sent me a note wondering about the legal effect of a will being signed shortly before the testator's death. The answer turned out to be somewhat complex. Below are the reader's question and my comments.

"If a will was signed shortly before the deceased passed away, does the court automatically review that, or could it be contestable?"

This brief question is going to generate a long answer, as it touches on several important elements.

The courts do not ever automatically review a person's will. There is no court, no government department, no public officer, who automatically reviews wills. The court only sees wills when they are submitted for probate, or are the subject of a lawsuit. In all of those cases, the will is brought to the court by an individual person such as an executor, a beneficiary, or a creditor, with a specific issue or question regarding the will.

Perhaps your question could be interpreted as asking whether the proximity of the signing and the subsequent death are automatically something that should be of concern. That is, whether it's something that individual executors and beneficiaries should find troubling.

If so, the answer is no. I could be perfectly healthy today and sign my will, then be killed in a car wreck two days from now. It's coincidental that I just barely got my will signed before my passing, but there is no reason to find fault with my will just because it was made close to my death.

That's the short answer, but of course there is more to it. In cases where the deceased was seriously ill before his or her death, the fact that the will was done shortly before death could well be an issue. This is because heavy medications may impair a person's mental capacity. There must be more than just a short time period in order to make the situation suspicious; look further to see what other facts exist and whether together they paint a picture that should be of concern.

Perhaps, for example, a man made his will only three or four days before he died. That on its own is not suspicious. But what other facts exist? Is this man's will significantly different from wills he had made earlier in his lifetime? In particular, does he heavily favour one person over others, or completely leave out family members in favour of a recent friend? If you look at all of the facts, you might see a problematic story emerging, or you might not. The questions I've included here are just examples, as there could well be other scenarios that cause concern.

The major issue that will arise is a suspicion that the deceased had been coerced, tricked, or simply persuaded to make a change to his or her will, and that because he or she was frail or weak, succumbed to the pressure. In a case like that, the fact that the change was made shortly before death might well be important. The deceased might have felt very weakened and unable to put up the resistance that he or she might normally have done.

This is known as undue influence, and is a ground for contesting a will. Normally it would be a beneficiary (or someone who would have been a beneficiary had the will not been changed) who brings this to the attention of the court. It's not easy to prove but it can be done. If undue influence is proved, the will would most likely be struck down.




2 comments:

  1. The major issue that will arise is a suspicion that the deceased had been coerced, tricked, or simply persuaded to make a change to his or her will, and that because he or she was frail or weak, succumbed to the pressure.[....]
    Combine this along with POA (Power of Attorney) some caregivers , beneficiaries, executors and perhaps some others are in a unique power position.

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    Replies
    1. Yes, you are right. I often suggest to parents that if they are going to have one of their kids act under the POA, perhaps they should have a different one act as executor. This is so that the POA knows that one day he or she will have to hand over all of the financial records to someone else to review. When I suggest this, most of the time I get a very negative response. Parents get offended at my suggestion that their child needs to have a second set of eyes review his or her activities. I wish more people would listen to me - and other wills and estate lawyers - and allow us to do more to protect them.

      Lynnw

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