Challenging a Will – We review a case where a son successfully challenged the validity of his father’s Will
In this post I consider the case of Topciapski  AC 9301269.
In this case a Will was challenged on the basis that a testator’s capacity was impaired and he was unable to approve its contents.
The facts were as follows. After the testator died, there were two Wills. Under the 2007 Will the testator’s two sons shared their father’s estate equally. However, under a subsequent Will made in 2009, one son was the sole executor and beneficiary.
The son excluded from the 2009 Will claimed that his father did not know or approve the contents of the Will at the time of its execution and, in the alternative, that his brother had unduly influenced his father.
In support of his claim, he obtained a medical report and provided evidence that there was no true or rational reason for his exclusion from the Will.
Although the medical report was not conclusive regarding the issue of capacity, the Court felt able to conclude that his capacity was impaired and the changes to his mental health had impacted adversely on his capacity to know and approve the contents of the 2009 Will.
Furthermore, the circumstances were considered sufficient to excite the suspicions of the Court.
The defendant therefore had a high burden of proof to show that the 2009 Will properly reflected the testator’s intentions and ultimately the Court was not satisfied on the balance of probabilities that the testator had understood the contents of his 2009 Will or its effect.
The challenge to the 2009 Will therefore succeeded.
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