Making a will when your death is imminent is almost never a good idea and is often a positive invitation to dispute between your loved ones after you are gone. In a case on point, the first salvo in a tragic inheritance dispute was fired even before the deceased could be laid to rest.
Following a family man’s death in his 60s, one of his five children sought possession of his body so that she could make funeral arrangements. She had the backing of her siblings, the man’s mother and other relatives. However, the man’s partner staunchly resisted her claim.
Following an urgent hearing, the child was granted an injunction that forbade the partner from taking possession of the body or arranging for its disposal. The partner responded with an application to set the injunction aside. In doing so, she asserted that the man had made a valid will, about three weeks before he died, in which he appointed her daughter as one of his executors.
Ruling on the matter, the High Court noted that the validity of the will, which was apparently signed by way of a fingerprint, was likely to be challenged on various grounds. Amongst other things, it was said that the fingerprint was not that of the deceased and that he lacked the mental capacity required to make a valid will. The disposal of his body was, however, an urgent matter that could not await the resolution of potentially lengthy probate proceedings.
In setting aside the injunction, the Court noted that the will was rational on its face and appeared to have been properly executed in accordance with Section 9 of the Wills Act 1837. In those circumstances, the law presumed, unless proved otherwise, that the will was valid and that the man had the capacity to make it. On that basis, the Court ruled that his partner’s daughter and the other executor named in the will were entitled to take possession of his body and to arrange his funeral.