Gordon R. McKenzie



Seventy-nine year old Bruce Bennett waited until his dying day to decide it was time to make a will. So ill that he could not call himself, a social worker contacted a lawyer who never before met Mr. Bennett to come to the Kingston General Hospital to prepare the will.

Mr. Bennet wanted his friend, Peter Hall, to get his general store and thought that his estranged daughter should only get $100.00. But Mr. Bennett was floating in and out of consciousness while discussing the will and the lawyer, Mark Frederick, finally concluded that Mr. Bennet did not really understand what he was doing and refused to complete the will. Later that day Mr. Bennet passed away.

The friend, Mr. Hall, having lost out on a valuable general store, sued the lawyer, Mr. Frederick, for negligently failing to complete the will (Hall v. Bennet Estate, 2001).

When you make a will you must understand what property you have to give away, who you want to give it to, and why someone who might expect a gift is being excluded. The Court decided that Mr. Bennett did not have capacity to make a will and that Mr. Frederick was under a duty to refuse to prepare one for him. A psychiatrist testified that a person slipping in and out of consciousness could not be aware of themselves or their surroundings and it turned out that Mr. Bennett's daughter had passed away before him.

When thinking about making a will, remember it can't be done if you don't have your wits about you; waiting too long could cost someone you want to benefit or enrich someone you don't.

This article is presented as general information only and is not to be relied on as legal advice. You should contact your lawyer to see how the law applies to your circumstances before any action is taken.

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