If newspaper reports are to be believed, dementia and Alzheimer's disease will take on epidemic proportions across Australia in the next couple of decades. While a hunt for a cure continues, these issues can nevertheless be very distressing for affected members of the family. In addition to the heartbreak and issues associated with ongoing care, the presence of these diseases can lead to some legal complications. How can problems be caused when a loved one is nearing their final days?
It's always a good idea for someone to leave clear instructions about how to resolve their estate in a last will and testament. This is meant to give the executor the ability to divide possessions and property among the beneficiaries according to the deceased. However, all of these instructions need to be created under freedom of testamentary disposition, which is a legal way of saying that the will-maker has to be mentally capable. If somebody suspects this was not the case, it may be grounds for contesting a will.
Bring in the Adjudicator
In the unfortunate event that this challenge should arise, a senior member from the medical profession will be called in to determine capacity. In an ideal scenario, this individual will be called in at the time when the will was being created and signed, should any testamentary capacity be suspected.
Carrying out Tests
The adjudicator will want to determine if the will-maker understood what the document was and how important their signature was, as well. They'll need to understand the value of the property and must know to whom they are bequeathing it. The judge will want to know if the entity or individual named by the will-maker had a reasonable right to receive the property, or whether the selection was unusual. In many cases, if a specific mental illness was diagnosed prior to a will being created, then it is likely that it would not stand legal checks.
Looking out for Trouble
Most importantly, the person who decides whether the will is valid will be on the lookout for the presence of any ulterior motives. This is why it's very important for family members to protect access to the loved one during their last days. Sometimes, individuals may suggest that the person gives a sizeable amount of their assets to a specific "cause," which is of course a scam. In the worst-case scenario, however, the legal system may have no alternative but to accept this choice, if there is no clear evidence of wrongdoing.
What Are the Options?
Often, people will make several versions of a will as time goes by. If this is the case here, then it may be possible to refer to an earlier version, created when capacity was not in question. If no other will exists, however, then a surviving family member will be asked to step in and divide the estate.
Looking at Your Case
If you have any questions regarding the validity of a will, get in touch with an experienced will and estate lawyer for help.Share