Bourne, Jenkins & Mulligan

October 17, 2003
What happens if I don't review and update my will?

by Amy MacMillan

Delays in making or updating your will should be avoided at all costs. Unexpected illness or a sudden decline in mental health may occur, leaving you with a will that does not reflect changes in your assets or intentions. Once a person lacks mental capacity, a will cannot be drafted or changed, which could result in expensive court proceedings regarding the estate and stress for family members.

Some have argued that it would be better to have a will made despite suspicion of lack of metal capacity to do so, and to fight about capacity issues later. However, the court has ruled against this practice as it would be unfair to the beneficiaries under the prior will or to the family entitled to inherit by law if there is no will. The cost of a court fight over capacity would reduce their inheritance and could needlessly create tension in the family.

The general requirements for capacity to make a will are that the person making the will must understand the nature and effect of a will, know the nature and extent of his or her property, understand the extent of what he or she is giving under the will, remember the persons that might be expected to benefit under his or her will and, in some cases, understand the nature of the claims that may be made by persons he or she is excluding from the will. The fact that a person can understand and respond to questions is not by itself sufficient evidence of mental capacity. Sound judgment is also required, and it is a lawyer’s duty to test that judgment. A lawyer should never prepare a will if, in his or her opinion, a person lacks any aspect of the required mental capacity.

There may still be situations in which a lawyer will consider it appropriate to prepare a “deathbed” will and take very careful notes of the evidence both for and against capacity. There will also be situations where the capacity issue arises early enough that a doctor’s opinion on capacity may be sought.

However, the best way to avoid the cost and upset common to capacity disputes is to prepare a will while still enjoying good mental capacity, and to review that will regularly.

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