There is a com­mon mis­con­cep­tion that a will is such a pow­er­ful doc­u­ment that noth­ing and no one can re­verse and/or ques­tion the last wish­es as laid out. This mis­con­cep­tion has led to nu­mer­ous le­gal bat­tles, an­i­mos­i­ty among fam­i­ly and ac­tu­al phys­i­cal blows.

Peo­ple be­lieve that there is a pow­er that comes with a will that al­lows them to laud over rel­a­tives who are not named as ben­e­fi­cia­ries. This is not so. A will can be ques­tioned, can be con­test­ed, can be set aside and cer­tain gifts can be re­versed or deemed void.

With­in the last week, I have not­ed two court de­ci­sions re­port­ed in our news­pa­pers. One stemmed from the Court of Ap­peal and the oth­er from the High Court. Both mat­ters car­ried the same sub­ject line: wills. The wills in ques­tion were chal­lenged due to var­i­ous con­cerns. Over time, I have writ­ten about the dif­fer­ence be­tween doc­u­ments be­ing pre­pared by an at­tor­ney ver­sus a Com­mis­sion­er of Af­fi­davit or a Jus­tice of the Peace. This has al­ways been a mat­ter of con­cern, as I am well aware that a will can be suc­cess­ful­ly chal­lenged if es­sen­tial steps are not con­sid­ered and fol­lowed.

As par­ents grow old­er, chil­dren be­come con­cerned about the di­vi­sion of fam­i­ly as­sets and par­ents are en­cour­aged by their chil­dren to pre­pare a will or even con­duct var­i­ous trans­ac­tions. But age, aside from phys­i­cal de­cline, can bring with it med­ical and men­tal de­cline. Any per­son (de­spite age) who is de­sirous of giv­ing in­struc­tions for the prepa­ra­tion of cer­tain doc­u­ments must have men­tal ca­pac­i­ty.

Yes, at­tor­neys can have con­ver­sa­tions and ask ques­tions to de­ter­mine that the client ap­pears to be of sound mind, but what holds more weight is a med­ical clear­ly out­lin­ing a vis­it by a med­ical prac­ti­tion­er who is able to as­sert that the per­son is ca­pa­ble of giv­ing le­gal in­struc­tions.

I have had sev­er­al peo­ple vis­it my of­fice with their el­der­ly par­ents and as soon as I re­quest a med­ical to de­ter­mine men­tal ca­pac­i­ty, they be­come up­set, ag­i­tat­ed and some­times ar­gue about my un­nec­es­sary re­quire­ment. This re­quire­ment is not un­nec­es­sary; the court is clear in its stance that a per­son who does not have men­tal ca­pac­i­ty can­not ex­e­cute le­gal doc­u­ments. If it is de­ter­mined that at the time of ex­e­cut­ing a will, the per­son suf­fered from some form of de­men­tia, mem­o­ry loss, Alzheimer’s or any oth­er dis­ease that im­pairs their men­tal ca­pac­i­ty, the will can and will be set aside.

There is al­so the ac­cu­sa­tion of un­due in­flu­ence and duress. Our so­ci­ety is such that many times, el­der­ly par­ents live with one of their sev­er­al chil­dren, or, even if they live alone, there is some­times a de­pen­den­cy on one child ver­sus the oth­ers. There have been in­stances where an adult child or rel­a­tive has sought to iso­late el­der­ly per­sons from oth­er fam­i­ly mem­bers.

With that iso­la­tion comes some form of pres­sure, duress or in­flu­ence, where they are led to be­lieve that no one else cares about them or will as­sist them. They are emo­tion­al­ly black­mailed or pres­sured in­to mak­ing cer­tain gifts of sign­ing off on cer­tain doc­u­ments. If a par­ty who is not named in a will, but who would have been oth­er­wise en­ti­tled, can prove this un­due in­flu­ence or duress, the court can ex­er­cise its pow­er to deem the will void.

Our Suc­ces­sion Act al­so con­sid­ers what is rea­son­able pro­vi­sion. In its most ba­sic terms, rea­son­able pro­vi­sion is the abil­i­ty to pro­vide for per­sons who would have been de­pen­dent on the per­son who is now de­ceased and would have left be­hind a will.

Let us take, for ex­am­ple, a hus­band and wife. The hus­band pre­pares a will where­by he leaves all of his as­sets to his chil­dren or child. His wife, be­ing a home­mak­er, de­pen­dent on him and hav­ing sur­vived him and in need of as­sis­tance, is clear­ly left out. The Suc­ces­sion Act al­lows for the sur­viv­ing wife to make a claim be­fore the court that she needs to be pro­vid­ed for. The court, in con­sid­er­ing the ev­i­dence, can award a por­tion of the de­ceased’s es­tate to his spouse who had not been con­sid­ered.

While this is a brief sum­ma­ry of is­sues that can af­fect a will, there are many oth­er is­sues that need to be con­sid­ered.

Re­cent­ly, Jus­tice Joan Charles had to de­ter­mine whether a will was fraud­u­lent­ly pre­pared and whether the per­son had men­tal ca­pac­i­ty at the time of prepar­ing the will. Her La­dy­ship heard ev­i­dence from the prepar­ing at­tor­ney and was able to up­hold the con­tents of the will. The court found that the at­tor­ney’s ev­i­dence was able to demon­strate that all prop­er pro­ce­dures were ad­hered to.

In sum­ma­ry, when a per­son is ad­vised to pre­pare a will, the prop­er ap­proach and pro­ce­dures should be con­sid­ered and adopt­ed, es­pe­cial­ly if the per­son prepar­ing the will is el­der­ly. Giv­en that there are sev­er­al means by which a will can be ren­dered void or be set aside, pre­cau­tions should be con­sid­ered. Ad­vice should be sought and short­cuts should be avoid­ed.

Pavi­t­ra Ramharack is head of cham­bers at Pavi­t­ra Ramharack At­tor­neys at Law and can be reached at ramharack_pavi­t­ra@out­look.com