Question:
Dear Elaine,
I recently lost my father whom I cared for on and off over the past number of years. My mother pre-deceased my father and I have two sisters who are older than me. My father was very transparent with us through the years and always told us that he wanted his estate/his house split equally amongst us. I was shocked when I found out that he had written a Will which left the majority of his estate to my older sister. This new Will was written approximately 6 months before he passed away and at a time when he was suffering from memory loss and was not in the full of his mental health. What are my options?
B.
Answer:
For a Will to be valid, it is necessary for the person making the Will to be of sound disposing mind, they must have ‘testamentary capacity’. Where a person is not of sound disposing mind, the Will can be set aside and an earlier Will can be relied upon. If there was no earlier Will made, the rules of Intestacy kick in, and the estate can be split equally between yourself and your sisters. I must make it clear that testamentary capacity is determined at the date on which the person signed their Will and not the date they passed away.
You may also have a case under proprietary estoppel to challenge the Will. This would occur where you have relied on a promise made to you that you would gain an asset upon the death of that person, and you relied upon that promise to your detriment.
The statute of limitations is very strict. If you wish to challenge the Will, you may only have 6 months from the date that the Grant of Probate issues. It is also possible to issue a Caveat in the Probate Office to prevent the administration of an estate. I would advise contacting a solicitor in early course to discuss your options.