The challenge for will challengers

Friday 28th June 2019

Hands Care Will Challenge Carer

The recently decided case of James Anthony De Jong v Derek and Ian Seager provides a useful reminder to practitioners of the issues which can arise when preparing Wills for elderly and/or vulnerable clients. Experienced practitioners will usually be 'on alert' where a client wishes to leave their assets to non-family members, even where, as in this case, the family have had nothing to do with the client for many years as it is quite possible that a challenge to the Will may be brought when the client dies.

In this case it was alleged that the Will in question was made as a result of the undue influence placed upon the deceased by her carer. There did seem to be evidence here that the deceased had subsequently changed her mind about naming the carer as a beneficiary but didn't get around to changing her Will before she died, however, the Judge found that prior to making the Will, the professionals involved took reasonable steps to satisfy themselves she was acting of her own free will and so the Will was valid.

This case illustrates the difficulty that disgruntled beneficiaries have in proving undue influence, as 'mere persuasion' is not enough. It is actually a real challenge to prove that influence was undue even in a case such as this where the client was very elderly and in need of care and the beneficiary arguably in a position of some power (as carer). The case of Chin v Chin is an example of when an undue influence challenge was successful.

The case is also a useful reminder of the action that needs to be taken to revoke a Will and how, in the case of an elderly or ill testator, action should be taken promptly as loss of capacity could become an issue.

For those beginning their Will drafting career, our new e-learning course Introduction to Will-Drafting covers the issues discussed in this blog with practical hints and tips for dealing with clients with potentially complex issues.

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