Contesting a Will
When a person dies, the contents of their Will can sometimes lead to surprise or disappointment for family members or friends who may have anticipated being left something within the will of the Deceased.
On what grounds can a will be contested?
Lack of Capacity
Lack of knowledge of approval
Lack of proper execution
Fraudulent or forged wills
What is meant by lack of capacity?
For a person to make a will they must be of sound mind which in the case of wills means:
Understand that they are making a Will and the effect of the Will;
Understand the consequences of including or excluding someone from a Will;
Not be suffering from a disorder of the mind.
What if the person preparing the will has doubts about the will maker’s capacity?
The will writer will consider if their client has capacity and may seek confirmation from the client’s doctor if they have any uncertainty.
What is lack of Knowledge and Approval?
The will maker must have knowledge that they are making a Will and approve of its contents.
A will may be contested for lack of knowledge and approval even where a person who has capacity to make a will and has properly executed the will.
How is a will properly executed?
Under Wills Act 1837 a will is not valid unless:
It is in writing and signed by the will maker, or someone in his or her presence at his direction;
The signature is made by the will maker in the presence of two witnesses at the same time; and each witness also signs the will in the presence of the will maker.
These requirements are strict and must be adhered to for a will to be valid.
What if I am concerned that a family member or friend may have influenced the Deceased when making their will?
Proving undue influence is very difficult as the main witness (the Deceased) will not be able to give evidence in Court. The burden of providing undue influence is with the person making the allegation, once it has been shown that the will is valid in all other respects.
For undue influenced to be proved, the following must be established:
The opportunity to exercise influence;
The actual exercise of influence in relation to the will;
that the influence went beyond persuasion;
That the will was brought about because of the undue influence.
I am concerned that the Deceased’s will may be a forgery, what can I do?
A will is not valid if it came about due for fraud or forgery.
A will may be forged by the dishonest party signing the testator’s signature on the will; by hiding or destroying the will and by presenting the will knowing it is false.
Cases of fraud or forged wills are actually relatively rare in practice.
Each case will hinge on the evidence on the circumstances surrounding the preparation of the will and expect evidence, from a hand-writing expert, on the signature on the will. The evidence of the witnesses of the Deceased’s signature will be crucial.
If you are concerned that a will may not be valid then you should seek advice on entering a caveat at the Probate Registry as early as possible to prevent the issue of the Grant of Probate. This will prevent the estate from being administered and distributed until concerns regarding the validity of the will have been investigated and resolved. In cases where a Solicitor has prepared the will, a Larke v Nugus letter to the will writer is useful in establishing the circumstances surrounding the making of the will.