A will ensures that your property is distributed in the way you want after your death. Therefore, it is important to create a will that will not be overturned if it is challenged in Court.
In the case of Green v Green [1], the daughter of successful businessman, Hugh Green, has successfully overturned her father’s will after it was found that Mr. Green was subject to undue influence at the time of changing his will. Mr. Green changed his will several months before his death to remove his wife as trustee and appointed two of his children, including his eldest son John, instead. Mr. Green was terminally ill and was beginning to suffer from short-term memory lapse. This made him vulnerable to undue influence. Mr. Green had intended for his son, John, and daughter, Maryanne, to run the business empire jointly after his death, however, as the siblings did not get on, John created a scheme to solely run the businesses after his father’s death. John organised and controlled Mr. Green’s actions to the extent that he had such influence over Mr. Green, that John’s volition overbore Mr. Green’s own volition. This means that Mr. Green’s decision to change his will was subject to undue influence. The overturning of Mr. Green’s will has significant consequences on the running of his trusts and businesses.
When creating a will, the will-maker is required to have testamentary capacity at the time of executing the will. This means that the will maker must have capacity to understand the nature of the particular acts, its effects and the extent of the will-maker's property. The key is that the will-maker has the capacity to understand what they are doing, rather than their actual understanding of the decisions. To be able to have testamentary capacity a will-maker must also be free from undue influence. This means that the will-maker is free from pressure and has made a decision based on their own volition. Undue influence generally requires a relationship of trust and confidence that amounts to a transaction in need of explanation. Once this has been established, it is up to the person wanting to uphold the transaction to show that the transaction was not subject to undue influence.
To ensure that a will remains valid if challenged, it is important to get independent legal advice. This will help to prove that the will-maker fully understood the decision they are making and is taken into account when establishing whether or not undue influence was exerted on the decision maker. A will should also be drafted and executed by a lawyer, as the lawyer will form a view on whether or not a will-maker has testamentary capacity. This means that a will is less likely to be overturned if it is challenged. If there are any concerns about a will-maker possessing full testamentary capacity an assessment of capacity should be done at the time of executing the will.
[1] Green v Green [2015] NZHC 1218
Rebekah Revell is an Associate in the Family Disputes team at Norris Ward McKinnon. You can contact Rebekah at [email protected]