Mum cannot make a Will if she lacks legal capacity. A person must be able to understand the nature and effect of the document they are signing. Unfortunately, dementia and other illnesses interfere with this ability. A Senior’s moment is not necessarily serious but it’s a great time to think about whether changes should be made to documents before it’s too late.
Making changes to Wills can involve some expense but the cost of not doing so can be even more expensive. In the case of Re Hall [2023] VSC 482 a mother had married twice. She had a child from her first marriage and a child from her second marriage. Her second husband also had children from a previous relationship. She left all her estate to her second husband possibly trusting that he would not alter his Will and would leave their assets to both his and her children. Circumstances altered, she went into care and as a result the couple were no longer living a joint life. Her son argued that her Will no longer reflected her wishes. The son commenced family law proceedings on her behalf, made an application for the Court to write a new Will for her (a statutory will) and apparently noted that if she died without her Will being altered he would make a family provision claim. Rather than entertain 3 court cases, how much better to think ahead, have a family discussion and make any changes before Mum’s senior moments stop being a laughing matter.
Our lawyers are available to assist you with advice about estate planning or in relation to disputes about Wills.
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