Every adult should have a valid and up to date Last Will and Testament. It is the proverbial “ounce of prevention”.
The will should be signed in the presence of two witnesses who also sign as witnesses at the same time. Those witnesses will be called upon to testify about the mental capacity of the person who signs the will and the circumstances of signing the will if there is an issue as to the will’s validity.
A person giving instructions to a lawyer to prepare a will (the “Testator”) must have the mental capacity to understand that he/she is:
(a) making a will; and
(b) the nature and consequences of the gifts made in the will.
Every will should provide for the payment of all expenses or debts owing at the Testator’s death and ensure that all of the assets of the estate are distributed in accordance with the Testator’s wishes.
When a person dies without a will, or if a person dies with a will having signed the will without the necessary mental capacity, or if there is difficulty interpreting the meaning of the will or any of its clauses, estate litigation usually ensues.
The court has jurisdiction to determine whether the Testator had the necessary mental capacity to prepare and sign the will, interpret any ambiguous clauses in the will, probate the will, grant a dependant financial support if the Testator died without making proper financial arrangements for his dependants, and other remedies.
If you do not have a will or your will is not up to date, you should retain a lawyer who is skilled in drafting wills. If you are a potential or actual beneficiary of an estate, the spouse or dependant of a deceased, or have questions as to whether the estate has been properly and timely administered, seek legal advice regarding your rights. There are strict time limits for commencing litigation after the death of a Testator. Significant delay can be fatal to your claim.