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SA Conflict of Interest between Beneficiary and Executor of Will?

Discussion in 'Wills and Estate Planning Law Forum' started by SelfRep11, 27 June 2015.

  1. SelfRep11

    SelfRep11 Member

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    Here is the scenario:

    A Bequest officer approaches an elderly person who has limited capacity and takes this person to a law firm to have their will changed in favour of their charity. The law firm has a conflict of interest in that they do regular business with the charity. A beneficiary begins a challenge to the will on the grounds the relative lacked capacity and undue influence was exerted as well. The law firm acting as executor of will and trustee refuses to cooperate with the beneficiary unless they get a court order.

    What options are available to the beneficiary to return the situation prior to what it was before the interference of the charity and the law firm. The normal timeframe elapsed to challenge the will normally and the ill advice of their law firm and large costs presented made it seem impossible?

    (The medical evidence is conclusive that the will maker had limited capacity due to dementia and schizophrenia many years prior to the approach by the charity - but the Dr would not cooperate and provide that information to the beneficiary)
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Selfrep11,

    If you can have the will which was made under undue influence rendered invalid by a court on the basis that your relative lacked the proper capacity to make a will, then it will automatically revert to the last will that your relative made with capacity.

    To do this you will need to institute civil legal proceedings, and if necessary subpoena the medical evidence from the doctor. What usually happens in this situation, given the high cost of litigation is the other party may choose the settle the matter which may allow you to negotiate up to the value they would have spent anyway on the litigation.

    Just bear in mind, that simply because someone has been diagnosed with various mental conditions years prior to executing a new will does not mean that a court will necessarily deem that they still had no capacity to make the will. The medical evidence may indicate that she executed the new will during a lucent period meaning the will will be valid.
     
  3. SelfRep11

    SelfRep11 Member

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    Thanks Sophea, where does conflict of interest come into this whereby the undue influence of a giving officer in tandem with a law firm that had a conflict of interest (shared bequest business with charity) caused the will to be changed to detriment of beneficiaries that unaware of the full extent of what had occurred but were frustrated by law firms not making medical evidence easily available...or how many arguments of law are needed to pursuade the party to restore equity to the family....cheers Selfrep
     

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