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Making a will is an important aspect of a person’s life. It gives certainty to family members, as to distribution. However, the laws are very critical, in terms of who can and cannot make a Will. As it is the distribution of assets, you have to be of sound mind, in order to understand what you are doing. This is not simply understanding the English language or any other language, it is actually understanding that you are distributing assets and the way you are distributing them.
Sometimes distributing them in unequal shares, can cause certain issues and accordingly again, you need to be fully aware of what you are doing.
There is complex case law, in relation to whether or not someone had any form impairment at the time of making a Will, which can render the Will completely invalid. Some of the court case decisions deal with the following:
- Someone who was diagnosed with Dementia or any other form of illness which had an impairment on the brain.
- Someone who may not have had a diagnosis for Dementia or an illness, but it is recorded on their medical records, that on occasion, they have experienced memory loss.
- Some of the evidence from family members or other people, suggesting that there had been a form of memory loss.
- Equally making a Will, where the decision appears to be quite bazaar, in terms of say removing a family member or some other situation which is unprecedented, where a promise may have made by the decease to a family member. That can give rise to suggestions, that the person may have had some form of impairment of the brain and did not know what they were doing.
What other matters could affect the validity of a Will
Undue influence is also a matter that is prevalent in the courts. For example, if one person had been living with the deceased prior to the time of death and everything has gone to that person, as oppose to any other family members, that can give rise to an allegation of undue influence which can render a will to be invalid.
- If there is evidence, that a promise had been made by the deceased either in writing to someone or verbally, that they were promised certain items in the will or assets but the actual Will was completely different, that can give rise to allegations of undue influence.
- If a person is on certain types of medication, which can give rise to long periods of drowsiness or some other form of mental impairment, that can give rise to allegations of them not being of sound mind. Even if that person does not have a diagnosis for mental impairment, that can give rise to that suggestion.
The law is very strict, in terms of these issues.