The Ex-Files: Signing documents with impaired judgement

It is often being unwell that prompts people to get their affairs in order. Photo / 123RF

COMMENT

Q. My friend is in his 70's and his health has been poor for some time. He divorced from his wife many years ago and has two adult children from that relationship. He met a new partner about three years ago and they are now living together in his home.

My friend told me that they visited a lawyer to arrange for his new partner to buy in to his home and that he made changes to his Will. I was surprised at the timing of this as he is just recovering from an operation and is quite medicated. He definitely doesn't seem like his normal self.

He always said he wanted everything to go to his daughters when he passed away as neither of them have a lot of money. I don't want to interfere, but I don't think the time is right to be making financial decisions that could affect him and his children.

A. I can understand the concern you have for your friend. It is ideal if people make big decisions about their property and their future when they are in good health. However, often it is being unwell that prompts people to make changes and get their affairs in order.

Is he well enough to make changes to his Will?

When a person makes a Will or requests changes to their Will, their lawyer should assess whether the person is competent to make those decisions, which in legal terms, is called having testamentary capacity.

A person making or changing a Will first needs to understand that the document they are signing is a Will. They need to understand the extent of their property and the people who would expect to benefit under the Will, as well as the implications of any changes. Even if your friend isn't completely well, he may still have sufficient testamentary capacity to make changes to his Will.

If the lawyer had any doubt, they should have sought a doctor's opinion on your friend's competence to sign.

Changes to ownership of the home

To make any changes to the ownership of his home your friend would have needed to engage an independent lawyer. That is, someone separate from his partner's lawyer, who would represent his interests and advise him of his rights and options.

The way a home is owned can have a big impact on who inherits it if one of the owners passes away. Where there are two or more owners of property, the property can be owned as joint tenants or as tenants in common. If property is owned as joint tenants, then there is a right of "survivorship". This means if one owner passes away, the other owner is entitled to the whole of the property, regardless of whether the deceased has a Will and what that Will says.

If the property is owned as tenants in common and each person owns a specified percentage of the property, then there is no right of survivorship.

These concepts would have been explained to your friend when he made these changes.

Next steps

I suggest raising your concerns with your friend and check whether he understood the impact of what he signed.

If he did not have mental capacity when he made his Will, then his children could challenge it in the High Court. If they are successful, the Will would be overturned and any previous Will would be reinstated, or the estate would be divided under the laws of intestacy.

Do you have a family law question? Email it to js@bastionchambers.co.nz. Questions should not exceed 200 words. Please provide a phone number. Your name will not be published. Jeremy cannot answer all questions, correspond directly with readers, or give legal advice. Jeremy's advice is of a general nature, and he is not responsible for any loss that any reader may suffer from following it.

Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures. www.jeremysutton.co.nz