Court refuses to validate a Will due to mental incapacity...

The ­­­High Court has refused to validate a Will that was signed by the daughter of the deceased, who held Enduring Power of Attorney for the mother.

The daughter of the deceased created and signed the Will for her mother prior to the mother’s death. The daughter did not show her mother the final copy of the Will prior to its execution, nor did the mother know of its existence.

It was commonly accepted that the mother did not possess the mental capacity to properly consider the contents of the Will.

After the mother’s death the daughter applied to the Court to have the Will validated. She argued that the Will represented her mother’s testamentary intentions and that the fact that the deceased didn’t know of the Will or its creation shouldn’t preclude it from being validated.

All four of the deceased’s children consented to the Will being validated, as they all supported the grant of a portion of the estate to one of the deceased’s grandchildren.

The Court stated that the Enduring Power of Attorney that the daughter was operating under did not give her the power to create and execute the Will without the knowledge of the deceased.

The Court refused to validate the Will as the definition of “natural person” in the Wills Act does not include third parties executing Wills on behalf of an incapacitated Will-maker. The application was dismissed.

If there is confusion around the validity of a Will, or what someone has the right to do under a Power of Attorney, it pays to seek advice from a professional with experience in the area.

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.

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