Warning Signs That May Need Looking Into
It is not unusual for somebody to feel uncomfortable about a Will after a relative has died.
Sometimes the reason is simply disappointment. A beneficiary received less than expected, or somebody was left out altogether.
But occasionally there are circumstances surrounding a Will which genuinely deserve closer examination.
A warning sign does not automatically mean that anything improper happened. What matters is the overall picture.
Was the Will unexpected?
One obvious question is whether the Will represents a major departure from what the deceased had previously said or done.
That might include:
- a child unexpectedly being excluded;
- children receiving very unequal shares for no obvious reason;
- a new or unexpected beneficiary appearing;
- a neighbour, carer or other person receiving a significant gift;
- substantial changes shortly before death.
The more unexpected the change, the more natural it is to ask what happened.
What was the deceased’s health like?
Questions can arise where the deceased was elderly, experiencing cognitive problems or showing signs of confusion around the time the Will was made.
Other factors can include:
- fluctuating mental ability;
- significant illness;
- fatigue or distress;
- social isolation;
- dependence upon one particular person for care or decision-making.
None of these automatically makes a Will invalid.
But they can make the circumstances in which it was prepared important.
Who was involved?
Consider who arranged the appointment and who communicated with the Will writer.
Was the deceased speaking for themselves?
Or was another person explaining what they supposedly wanted?
Particular concern may arise where somebody benefiting substantially under the Will was also closely involved in arranging it, lived with the deceased or was their principal carer.
Again, involvement doesn’t prove wrongdoing. Families naturally help elderly or ill relatives.
It is the combination of circumstances that matters.
Were there several different Wills?
Repeated Will changes over a short period can be worth investigating.
You may need to establish:
- when each Will was made;
- what changed;
- who benefited from each version;
- who was involved in arranging them;
- what the deceased’s health and circumstances were at the time.
Sometimes there is a perfectly straightforward explanation.
Sometimes the pattern itself raises further questions.
What happened immediately after the death?
The behaviour following a death can also give an indication that trouble may be developing.
Warning signs identified in the checklist include immediate objections from beneficiaries, disputes surrounding funeral arrangements, requests for the Will writer’s notes or file, allegations concerning capacity or undue influence and a caveat being entered shortly after death.
Another potential concern is an executor who is unwilling to provide reasonable information without any obvious explanation.
Don’t confuse unfairness with invalidity
A Will can appear deeply unfair and still represent exactly what the deceased wanted.
Conversely, a Will that looks perfectly reasonable on its face may have been prepared in questionable circumstances.
The important issue is therefore not simply:
“Do I like what the Will says?”
It is:
“Is there a genuine reason to question how this Will came about?”
If you are worried, preserve the information
If concerns exist, avoid relying purely upon family recollections.
The circumstances surrounding the Will may eventually matter: previous Wills, correspondence, the deceased’s health, who attended meetings, who arranged appointments and what records were made at the time.
Concerns are usually easier to investigate while information and documents can still be located.
Not every suspicious circumstance leads to a Will dispute.
But if several warning signs appear together, it can be sensible to investigate them before the estate administration progresses too far.