Daughters Who May Never Inherit Fail to Dislodge Will

July 9, 2015

Daughters Who May Never Inherit Fail to Dislodge Will

Although she had separated from her husband more than 20 years previously, a woman who died of a brain tumour in 2010 had not yet completed the settlement of the financial side of her divorce when she died.

Since the separation, she had taken up with a man 26 years her junior and, in a will made a month before her death, she left him a 'life interest' (use for life) in her matrimonial assets resulting from the settlement with her ex-husband and half of the remainder of her estate.

The balance of her estate she bequeathed to her daughters.

The daughters challenged the will, claiming that their mother lacked 'testamentary capacity' when it was made and that a letter she wrote to explain her actions was written by her partner.

The dispute centred on whether the mother understood the implications of the arrangements she had put in place: particularly, the likelihood that her daughters, given the similarity in their ages to that of her partner, might never benefit as intended under the terms of her will.

For a will to be valid, it is not enough that the person making it understands the effects of its terms. They must also understand the 'reasonably foreseeable consequences' of the will.

The court concluded that the woman would not have signed the letter of wishes without reading and understanding it and had mental capacity to draw up the will she did.