Man diagnosed with dementia changes Will, leaving children out…

An undue influence claim over a father’s capacity to make changes to his Will has been rejected in the High Court.

In New Zealand law a claim of undue influence can be made where one party has been pressured to sign, or agree to terms, by another party. Often the signing party is in a weaker position and is vulnerable to coercion by the stronger party.

After being diagnosed with dementia the father had made changes to his Will that significantly reduced some of his children’s inheritance.

The children contested his Will but it was held by the Court that their father had capacity at the time the changes were made, meaning the Will was valid.

The father also added a close friend as a beneficiary in the Will, and at the same time appointed her as his Enduring Power of Attorney. She was his neighbour, had cared for the man in his last years, and accompanied him when he went to make the changes to the Will.

It was claimed the neighbour’s involvement unduly influenced the father to add her as a beneficiary, taking advantage of his condition.

However, the father made it clear to his lawyer that two of his children had not treated him well in his later years and that he had little to do with them. He felt his contributions and support to them throughout their lives made for adequate provision.

The children gave contrary evidence and were aggrieved by the decision of the Court. The long and drawn-out process of the proceedings caused emotional and financial strain for the family.

Challenging her father’s capacity before his death proved difficult for the daughter. She made clear her view that there needed to be a better system for elderly changing their Wills or making Enduring Powers of Attorney.

She argued a better balance is needed in the law because her father’s ability to make changes was far too easy in comparison to her efforts to contest this. 

Although later changes made to the Will were found invalid, the first change was professionally prepared. The lawyer had expertise and gave evidence that he was confident that despite his client’s diagnosis he had capacity to give instructions.

It can be a difficult outcome for families to come to terms with. If you think a similar issue might arise in your family, it is best to seek advice from an experienced legal professional on the best course of action to help avoid this outcome.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.