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Suspicious Circumstances and Wills

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Hello. It’s Margaret Arthur, partner with CRH Law, speaking with you today about suspicious circumstances and wills. Clients often come to see us because they’re troubled by a will that’s been left by a loved one and may not feel that the will really represents what the loved one wanted. Now, the law does recognize suspicious circumstances sometimes attempt to the making of the will, and the law does certainly provide an opportunity for people who are troubled by a will to attempt to explore and get to the bottom of what has occurred.

Now, suspicious circumstances are recognized by the law to occur in some of the following instances. For example, if a gift is left to the solicitor who has drafted the will or the person who has drafted the will now, and that’s particularly the case where the solicitor is not an immediate member of the family, of the testator. That’s the person who’s made the will, or it can arise where a beneficiary has been pushy and active in having the will made by the testator, and they received a gift under the will.

Other circumstances may suggest that there’s something suspicious or forth. In circumstances where a will had the parts from the previous pattern of will-making of the testator. For example, they might previously have provided people who would have a natural claim to their estate, but in their last will have provided for a beneficiary for whom they’ve only had brief or little contact during their lifetime.

Now, in considering these sorts of matters, the court will look at a whole range of factors as it generally does in these circumstances to try to get to the bottom of what has occurred. Are the circumstances suspicious, or are they explicable? The law, the law and the courts will examine the relationship between the testator and beneficiary. There’s a well-known case in which a very wealthy testator bestowed a generous gift upon his solicitor, but the court did ultimately found that it was the genuine wish of the testator to do that. He and the solicitor had had a friendship going back years, so the court will look at the nature of their relationship, the link of the relationship.

It will also look at the state of mind of the testator, and the law talks of feeble-mindedness. For example, if the testator perhaps suffered from Alzheimer’s or dementia, or it maybe that they can’t read and write, or that English wasn’t their first language, or there could be other factors such as deafness or blindness at play. The court can look at all of those factors. They can also question why it is that a will-maker has cut out people who would have been their natural beneficiaries and question why is it that perhaps they’ve included a beneficiary with whom they’ve had little contact previously.

Suspicious circumstances is a recognized area of private law. There are ways of addressing concerns. For example, it may be that a private caveat would be appropriate to stop probate granted in relation to a will that may not be valid. Really, what the court is looking at is, does the will represent and express the wish of the testator? If it’s the case and it doesn’t think it does, then that will might set aside, and it’s then possible that a previous will would come into play, or if there is no previous will, the rules of intestacy may come into play to determine how that estate should be distributed. As with all of these matters, it is important to act quickly, get some light upon us, consider your options, and we’ll see you from there.

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