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how can you contest a will?
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Attwood Marshall Lawyers estate litigation solicitor, Melissa Tucker, responds to commonly asked questions about how can you contest a Will.

In which situations can you contest a Will?

People contest a Will for many reasons not related to a challenging the validity or contesting like family provision.  It is an unfortunate reality that disputes arise after the death of a loved one.

‘Disputes’ are often an argument as to what the will meant; how the will is being administered or distributed; whether there are errors in the Will; whether a beneficiary named in the Will is not entitled because of a crime committed; removal of an executor or administrator or other disputes about the use of a ‘power of attorney’ during the deceased lifetime.

There are four different types of Will challenges:

  1. On the grounds someone didn’t have mental capacity to make a Will
  2. Will maker didn’t have knowledge or approve a Will
  3. Will was written under the influence of others
  4. Will was fraud or forgery

When can you contest a Will because the Will maker did not have mental capacity to make a Will?

This is a difficult area, and in many instances, family members simply obtain a Medical Certificate from a treating General Practitioner.  This cannot always be relied upon as being conclusive in relation to whether someone has testamentary capacity.  It is quite a complicated process to understand the relevant issues and ensure that the person making the Will has the required testamentary capacity.

All adults are presumed to have capacity, unless the contrary is established, in court and is for a judge to determine.

No one can stop any person from writing his or own will, with or without cognitive impairment, and it is only after the death of the will maker that a judge will be asked to determine whether or not the will is valid.

Solicitors have a duty to ensure the client has the requisite legal capacity before either taking instructions or assisting them to make a will.

The legal test for establishing testamentary capacity is well-established with little change since it 1870 inception in Banks v Goodfellow.

The test established by Banks v Goodfellow must be brought to bear on ‘existing circumstances in modern life. The adaption of the test to modern life requires that:

  1. The testator/testatrix must be aware, and appreciate the significance, of the act in the law upon which he/she is about to embark;
  2. The testator/testatrix must be aware, at least in general terms, of the nature, extent and value of the estate over which he/she has a disposing power;
  3. The testator/testatrix must be aware of those who may reasonably be thought to have a claim upon his/her testamentary bounty, and the basis for, and nature of, the claims of such persons; and
  4. The testator/testatrix must have the ability to evaluate, and discriminate between, the respective strengths of the claims of such persons.

The assessment of testamentary capacity is growing in complexity and increasingly demands an interdisciplinary approach which utilises the skills of legal and medical professionals.

Can a person with dementia make a Will?

There are many thousands of people in society who would be attempting to write a will either with or without a solicitor’s assistance and many of these will makers may have dementia. Another term used for lack of mental capacity is “cognitive impairment” which greatly increases from the age of 65.

Dementia is described as a chronic or persistent disorder of the mental processes caused by brain disease or injury and marked by memory disorders, personality changes, and impaired reasoning, a chronic or persistent disorder of the mental processes caused by brain disease or injury and marked by memory disorders, personality changes, and impaired reasoning.

According to the Australian Bureau of Statistics one in 15 people over 65 – increasing to one in four people over 85 – suffer from dementia. It is also estimated that each week in Australia 1600 new cases of dementia are diagnosed, a figure expected to grow to 7400 a week by 2050.

Give an example of where a Will was challenged because a Will-maker had dementia or no capacity

Let’s take for example, a Will maker in their late 90s with dementia, where a carer, friend or other family member has organised for a Will to be signed (in their favour), when it appears the will maker is not really in a position to understand and approve that will.

The Will maker may be paranoid or delusional and making a will that’s influenced by their delusions to the effect he or she did not possess the required mental condition at law to be able to make a will.

In this instance Courts would need factual evidence to prove the will maker lacked mental capacity at the time the will was signed.

However sometimes there is no factual evidence that exists to prove this.

Family members may be absolutely convinced, for example, their mother or father did not have mental capacity at the time the will was signed. But if there is insufficient factual evidence you will not be able to convince a judge.

It is for this reason, doctors often give evidence of what they observed many months or even years before the signing of the will but if the patient (will maker) was ‘in and out’ of mental capacity from time to time the doctors evidence may be uncertain and insufficient to prove the will makers lack of knowledge and approval.

Can you contest a Will because a will-maker did not have full knowledge of his/her approval?

Similar to lack of mental capacity and sometimes they are both conducted in the course of a hearing before a judge at the same time if a will maker did not have the required mental capacity to make a will (also known as lacking testamentary capacity, mental capacity) then clearly that will maker would not have the knowledge nor given his or her approval to the will because they were incapable of doing so at law.

However lack of knowledge and approval can apply when a will maker does have testamentary capacity and for example could occur when a will maker of sound mind has signed a will not fully understanding its contents and thereby not giving his or her approval to the will.

Take for example where the judge has decided that the will maker did indeed have testamentary capacity but then goes on to look at the evidence as to whether the will maker did not have knowledge of the contents of the will and therefore did not give approval to it. In such a case the judge might decide that the will maker was mentally capable of making a will but at the time of signing the document he or she did not understand the contents.

The rules regarding the preparation and signing of a will are very important in society to ensure the correct transfer of the assets to the person or persons intended by the deceased.

Can you contest a Will because of elder abuse?

As I mentioned earlier, it is possible to contest a Will on the grounds that the will was written at a time when the will maker was being unlawfully influenced by others.

HOWEVER: Challenging the validity of a will on the grounds of undue influence (alone) is extremely difficult to win and accordingly very few cases have ever been successful.

Sometimes this challenge is alleged together with and at the same time as lack of mental capacity and lack of knowledge and approval because all three allegations are often every closely related and the same evidence is used in relation to each challenge.

Over the past 100 years only three cases have been successful; one each in NSW, Victoria and Queensland.

The onus of proving undue influence rests upon the person making the allegation and he/she must prove beyond doubt that the deceased will maker at the time of signing the will was actually unlawfully influenced.

The two biggest hurdles to overcome is firstly the fact the will maker is no longer available to give evidence and secondly the influence alleged would have to be around the time of the signing of the will.

In these cases, common sense does not prevail. You and I may be fully aware that family member/s or a friend or carer has influenced the will maker by continually asking to be left in the will or even making threats about not looking after the will maker in his/her old age unless included in the will.

However at law this type of influence is not sufficient to win the case.

The influence required is actual duress (force) almost like holding a gun to the head of the will maker.

Very surprisingly, badgering the will maker is not regarded as undue influence.

Continually harassing the will maker to include you in his/her will even to the extent of taking the will maker to your solicitor is certainly wearing him/her down however is not (in wills law) ‘undue influence’.

There is some good news. When all of the evidence is before the court regarding lack of mental capacity, lack of knowledge and approval and undue influence sometimes there is sufficient evidence for a judge to determine the will is invalid for one or more reasons.

Can you contest a Will because of forgery?

Challenging the validity of contesting a Will on these grounds usually does not involve the will maker.

The allegation of course is that the will being challenged is not that of the deceased at all.

The onus of proving the fraud or forgery rests upon the person/persons making the allegation.

The evidence required is usually from one or more experts in the field of handwriting, pencil, ink, paper, photocopy machines and any other evidence proving a fraud or forgery.

Can anyone challenge or contest a Will?

The only person/s entitled who can contest a Will on the basis of its validity is either someone named in a previous Will or someone who would be entitled to an inheritance under the rules of intestacy.

Although the laws of intestacy differ slightly from state to state, the order of entitlement on intestacy is usually as follows:

  • Your spouse or de facto spouse
  • Your children (and grandchildren if a child has predeceased you);
  • Your parents;
  • Your siblings (including any half siblings);
  • Your Grandparents;
  • Your Aunts & Uncles.

How long does it take to contest a Will?

Depending upon the complexity of the case, it could possibly take 9 to 12 months for settlements to be approved by the court and possibly 12 months to 2 years or more for a court hearing.

Who pays for the costs with contesting a Will?

The big issue in these cases is the legal costs involved. Unlike family provision cases, there is very little discretion by a judge (at the end of a case) when considering who should pay the legal fees. There is always a huge risk of losing a will challenge case no matter how much evidence you think you have. The law, with few exceptions, is that the legal fees of both claimant and defendant are to be paid by the loser.

One exception to that rule is if the judge considers that proceedings although unsuccessful were really commenced as a result of something the deceased had done that caused those proceedings to be commenced and for the need of a judge to make a determination.

As a rough guide there are two extreme scenarios.

  1. Firstly, a very simple challenge with all parties agreeing to an application for the judge to approve the cost could be anywhere between $20,000 and $50,000.
  2. Secondly, a complicated challenge with lots of witnesses and a five day hearing in court anywhere between $200,000 and $500,000. Thirdly, somewhere in between.

How can Attwood Marshall Lawyers help with contesting a Will?

If you wish to challenge a Will or feel that you have not been adequately provided for in someone’s Will, please contact us to arrange an obligation free appointment for preliminary advice.  Our experienced lawyers will be able to provide you with an assessment of your prospects of challenging a will or bringing a claim and outline the terms upon which we are prepared to accept your instructions.

In many cases we agree to act for you on a “No win, No fee” basis.  This means that we do not charge you anything for costs and disbursements until the end of the case and we only charge you if we win!

For any inquiries regarding Challenging or Contesting Wills on a “No win No Fee Basis”, please contact the Department Manager Donna Tolley, on direct line (07) 5506 8241 or by email on dtolley@attwoodmarshall.com.au.

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Melissa Tucker

Melissa Tucker

  • Senior Associate
  • Wills and Estates
  • Direct line: (07) 5553 5803
  • Mobile: 0411 046 805