“Death is not the end. There remains the litigation over the estate.” (Ambrose Bierce)
Your will (“Last Will and Testament”) will always be the keystone of your estate planning, and a recent High Court decision sounds yet another warning to beware the “do your own will” concept. By not having his will drawn by a professional, a father inadvertently caused one of his children to be disqualified from inheriting her intended share, whilst her husband was disqualified from being appointed as executor.
Who is disqualified from inheriting?
Our law, in the form of the Wills Act, provides that no one (or their spouse) can receive “any benefit” under a will if –
“Any benefit” in this context means not just inheritance as an heir, but also appointment as executor, trustee or guardian.
A court can only allow such a person to inherit “if the court is satisfied that that person or his spouse did not defraud or unduly influence the testator in the execution of the will”. Importantly (as we shall see below), it is up to the heir to prove the absence of any fraud and undue influence.
As the Court put it: “This disqualification exists in order to prevent falsity and fraud, and to prevent ‘the exertion of undue influence over people in bad health or in feeble state of mind’. This is because the fact that someone who stands to benefit from the death of a testator in terms of a will, and who is involved in the drawing of the very will in which that benefit is declared, ineluctably invites speculation that he or she may have improperly influenced the testator in the framing of his final testament, more particularly so where the will is executed at a moment of crisis in the testator’s life.”
If the beneficiary would have inherited anyway under intestacy (i.e. if the deceased had not left any valid will at all) they may still inherit but no more than the value of their intestate share.
The facts of the family fight
The bottom line
All that dispute, uncertainty and legal cost could have been avoided had the father called in a competent professional to draw his will for him (preferably long before his illness struck). Don’t make the same mistake!
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)