Brothers lose dispute with sisters over father’s Will...

The High Court has recently decided that a father did not lack mental capacity, nor was he unduly influenced by his daughters, when he made changes to his Will. The Court ordered that the new Will be given effect.

Two brothers made a claim to the High Court after realising their father had made changes to his Will that did not favour them. The changes meant that the brothers only received the father’s interest in the family business, while the sisters received the family residence as well as $165,000 cash.

The brothers claimed that their father lacked testamentary capacity or that he had been unduly influenced.

A person may be deemed mentally incapable of creating and signing a Will if they are unable to understand the contents of the Will or cannot make sound decisions. For example, if the person is suffering from a brain disorder such as dementia.

In this case, though the Will-maker was 93 years old, there was no evidence that he was unable to understand the changes he was making, nor that he could not make sound decisions. The Will-maker was depressed and taking pain medication, but there was no evidence that he lacked mental capacity.

This was supported by the fact that the solicitor who drafted the Will had provided a declaration that the Will-maker, “…had full capacity and understood clearly the contents and intent of the Will”. The Court therefore determined that the father was mentally capable at the time he made changes to the Will.

The Court then went on to determine whether the father had been unduly influenced. A person may have been unduly influenced if someone put undue pressure on the Will-maker, or coerced them into signing a Will, such that their free will was not being exercised.

In this case, the Will-maker provided a signed declaration which set out his reasons for changing his Will, which included believing that he had provided for his sons sufficiently. The daughters had also not been present at the second meeting regarding the change of the father’s Will and so the father had a chance to speak his mind.

The Court decided that the Will-maker had not been unduly influenced. The Court dismissed the application and ordered the brothers to pay their sisters’ legal costs.

It is important to be aware of your duties as a will-maker. If you are confused about these duties, 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.

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.