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Willing but not able?

A will-maker must have legal capacity to make a Will.  Much of the legal test is easy to apply but the difficult part of the test is to judge whether the will-maker can properly weigh up their moral responsibilities towards family members.  As Shakespeare noted in the 7 ages of man, as we age our “last scene” is “second childishness” and this brings with it vulnerability. As a result, it can be common for will-makers to unexpectedly seek to change their Will to reduce entitlements to family members when being pressured by a family member.  In a recent case of   Bracher v Jones [2020] NSWSC 1024 Judge Robbs overturned the last Will of a will-maker. Mrs J died leaving 2 homes worth approximately $1.2m each. In a previous Will, she had left one house to each child (a son and a daughter) and this was considered to be her long held intention.  But in her last Will she left her estate entirely to her son. The Judge found that she had not been able withstand pressure from the son who was suffering from delusions about his sister (he accused her of stealing from her mother) and a result was not capable of evaluating the strength of the daughter’s entitlement. The Judge found her to lack legal capacity to make the Will and also found that the “constant importuning of an old and weakened person” with compromised testamentary capacity was coercion by the son causing a finding of undue influence by him.

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