The ageing population may impact on how to challenge a will

Date: Dec 16, 2011

The use of a valid will is a powerful tool for many to be able to have their say on how they would like their assets distributed to family, friends and loved ones.

However, there are a number of compelling reasons why you may want to look into the legal processes that are involved in disputing a will.

One of the points that is becoming increasingly becoming the focus of estate disputes is that of testamentary capacity.

The Australian population beginning to age at an increasing rate - with experts estimating that the number of people aged over 55 is expected to increase by an average of 150,000 people each year for the next 40 years.

This means that within a generation, this age range will account for approximately 33 per cent of the domestic demographic - with a quarter aged over 65.

The unfortunate implication of this growing number of age-rich citizenry is that they may bring with them an increase in the number of cases of mental disease such as dementia and Alzheimer's - in addition to short-term memory problems.

While attributes such as creativity, insight and wisdom do not fade with age, these other conditions may mean that as the population shifts past retirement age, there may be discrepancies in the estate planning process.

Because a will is meant to give its creator the ability to determine how their assets are divided, it is important that they are in full possession of their faculties when making provisions for family and friends that could potentially impact on their quality of life.

To this end, there are a number of requirements that need to be met for a will to considered valid, including the creator having a clear understanding of just what the document is that they are making - and how their property will be affected by their estate planning activities.

One of the common problems with these requirements is that an elderly relative may be quite coherent and lucid in their desires when they decide to write a will, but find that they become confused as the process continues.

In these cases it needs to be shown that the person writing the document was unable to deliver a clear and reasoned approach to the division of their estate.

If this can be determined to the court's satisfaction, they may be able to put the will to one side in favour of a division that can be made to allow for the personal situations of family, friends and carers.