What are the requirements of a valid will?

My mother left me out of her Will and I don’t believe she was of sound mind when she made it. She didn’t make it in the presence of a solicitor, but just used a Will kit. Can I look at her medical records to see if she was suffering any illness like dementia at the time she made her Will.

Answer:-

There are certain legal requirements that need to be met to make sure that a Will is recognised as a valid Will. The main requirements are that the Will is written and signed by the person making it in the presence of two people (“witnesses”) who also sign the Will. The most important legal requirement is that the person making the Will needs to have testamentary capacity. This means that the person must be of sound mind, memory and understanding when they sign the Will.

If your mother was not of sound mind, memory and understanding at the time she signed her Will then the Will is invalid and her property will be distributed according to the laws of intestacy.

To decide whether your mother had testamentary capacity you need to show that your mother lacked one of the following elements at the time she made her Will:

• That your mother knew what a will was meaning the precise nature and effect of making a Will.

• That your mother appreciated what her property was and understood what assets she had to leave to her beneficiaries.

• That your mother understood the people who would have a reasonable claim on her estate i.e. spouses, children and family members.

• That your mother did not suffer from a “disease of the mind” meaning a condition that prevented her from making a rational decision for example dementia, drug induced psychosis or mental illness.

To challenge your mother’s Will, you need to oppose the granting of probate of her Will in the Supreme Court on the basis that she did not have testamentary capacity at the time she made her Will as she suffered from a “disease of the mind.” To show this requires medical evidence of her state of mind at the time she made her Will.

If the Court decides based on the medical evidence that your mother was not of sound mind at the time she made her Will then the Court will declare the Will invalid and rely on any earlier Will made by your mother. However, if your mother made no other Will than her estate will be distributed according to the laws of intestacy. This means that you, as a child of the person making the Will, may be entitled to a share of the estate.

Even if your mother was of sound mind when she made her Will you may be eligible to make a claim on her estate under the Family Provision Act on the basis that your mother did not make proper provision for you in her Will based on your needs.

The expert Wills and Estate Solicitors, at Northern Beaches Lawyers, can assist you in obtaining access to medical records for your mother in order to determine whether she was of sound mind when she made her will.

Graeme Heckenberg is an expert litigation lawyer and will be able to guide you in the process and represent your case in the Supreme Court close to his Sydney city office. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice in a Will dispute or Estate matter, call today for a an appointment closer to home on 9221 0341

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