Managing Suspicious Circumstances

When a solicitor is drafting a will s/he must be vigilant to ensure that there are no so-called “suspicious circumstances present or else the chances of a challenge to the will in court, and that challenge succeeding, is vastly increased. Solicitors are placed in a difficult position professionally when a client wants to make a will and there are doubts about the capacity of the will-maker to do so. As the KBR has mentioned previously, the test for testamentary capacity is ultimately a legal one, therefore a medical opinion is persuasive, but not conclusive. Ultimately, the solicitor may refuse to draw a will for someone who they believe does not have the requisite capacity. Some authors have suggested that the solicitor who fails to discharge his or her duty to properly investigate all suspicious circumstances may be liable to disappointed beneficiaries under the failed will.

The solicitor must constantly question whether the will is rational, from what the solicitor knows of the will-maker’s circumstances. This analysis includes scanning all potential beneficiaries, previous wills, reasons for amendment (and can these reasons/circumstances be objectively verified), and any discussions about disposition with potential beneficiaries.

Where suspicious circumstances exist, the burden of proving the will-makers knowledge, approval and capacity is no longer assumed but reversed and placed on the propounders of the will. The burden of proof for these matters is the civil standard of proof, being a balance of probabilities (51%).

Circumstances that courts have found to be suspicious include :

1. Physical or mental deterioration;
2. Secret preparation of a will;
3. “Unnatural” dispositions;
4. Involvement of beneficiaries in will preparation;
5. Lack of control of personal affairs by the will-maker;
6. Drastic changes in the personal affairs of the will-maker;
7. Isolation from friends and family;
8. Drastic changes in the testamentary plan of the will-maker;
9. Physical, psychological or financial dependency on the beneficiaries.

A will-maker’s duty is to prevent others from perceiving suspicious circumstances. In order to do so, they should make sure to have their affairs in order no matter what age.