Challenging Wills

Estate Litigation

Challenging the validity of a Will

If you are concerned about the validity of a Will, our Estate Litigation team can assist you in bringing a challenge against the Will in Court.

If you have concerns that a person’s last Will is invalid, then there are options available to “challenge” the validity of the Will. This is quite different to “contesting” a Will.

A Will is usually challenged when there are issues concerning the validity of the Will itself. The most common reasons for challenging a Will are lack of testamentary capacity, suspicious circumstances, undue influence, lack of knowledge and approval by the Will-maker, if the Will was not signed or witnessed properly or if the Will is fraudulent.

It is important to seek immediate advice if you have concerns about the validity of a person’s Will. When a person dies, there is a brief window of opportunity to take steps to prevent the Will being declared valid by the Supreme Court.

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FAQs

On what grounds can I challenge a Will?

Reason 1: Lack of testamentary (mental) capacity

You can challenge a Will if the deceased was suffering from a condition that affected his or her speech, cognition, mental or physical capabilities at the time his/her Will was made, including:

Dementia
Alzheimer’s
Degenerative conditions or diseases, such as Parkinson’s or Motor Neuron Disease
Schizophrenia

What if someone has been diagnosed with early stage dementia?

Being diagnosed with early stage dementia doesn’t automatically prevent someone from making a valid Will. There are different stages of dementia. There are certain stages even in later stage dementia where a person can have lucid periods.

What evidence might be used in a Will contest on the grounds that the Will-maker had impaired capacity?

For these types of claims, the main types of evidence used are:

Medical reports and clinical notes
Specialist reports
Witness statements from people who knew the deceased and knew the history of the relationship between the parties involved
Telephone log history and bills
Bank account statements
Facebook messages
Social media posts and history
Handwritten notes
Photographs to show history of relationships between parties
Digital notes in a person’s mobile or tablet device

Reason 2: Suspicious circumstances

There is no strict definition of what constitutes “suspicious circumstances”. Generally speaking, it usually occurs when the Will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the Will-maker.

Some examples that have appeared in court cases are:

An unexplained change of beneficiaries (e.g. where previous Wills have left the estate to children equally and suddenly changes to one child or a carer);
No apparent estrangement of the Will-maker from disinherited beneficiary (e.g. a child is left out of the Will for no apparent reason);
The Will-maker has been under the control of a favoured beneficiary (e.g. where the child lives with the elderly parent);
Preparation of a Will by persons known to the beneficiary rather than the Will-maker (e.g. taking the parent to their own lawyer or another friend who prepares the Will);
Suspicious conduct of the favoured beneficiary under the Will towards the disinherited beneficiaries after the Will has been executed (e.g. attempting to hide the existence of the Will or telling lies about the Will’s existence etc.).

What kind of evidence does the Court consider?

For these types of claims, the main types of evidence used are:

Medical reports and clinical notes
Specialist reports
Witness statements from people who knew the deceased and knew the history of the relationship between the parties involved
Telephone log history and bills
Bank account statements•Facebook messages
Social media posts and history
Handwritten notes
Photographs to show history of relationships between parties
Digital notes in a person’s mobile or tablet device

Reason 3: Undue influence

A very succinct statement of the law in relation to this area is as follows:

“To be undue influence in the eye of the law there must be – to sum it up in a word – coercion. The testator is in such a condition that if he could speak his wishes to the last, he would say, “This is not my wish but I must do it (see Wingrove v Wingrove(1885) 11PD81 ).

Undue influence is more than just suggesting to someone that they should write their Will a certain way. They must have been coerced to do it. Coercion is pressure that overwhelms the testator’s own wishes.

Reason 4: Fraud/forgery

The most common examples of a Will being procured by fraud or forgery are:

Where a testator has been persuaded by another person to sign a document which they do not believe to be a Will (e.g. the testator is asked to sign a bank form or other paperwork not realising it is a Will).
Where a testator has been misled by another person which persuades them to make a Will which they otherwise may not have made (e.g. when a child tells their parent that their sibling is very well off and doesn’t need the money).
Where a handwritten Will is presented after someone dies, and the signature (or the entire document) has been forged by another person.

Fraud may arise where a person has misled a Will-maker to make a Will by making intentionally false statements or by suppressing relevant facts (or both). The conduct must be engaged in for the purpose of the person obtaining a benefit under the Will, or in order to prevent a worthy recipient (such as a dutiful spouse or child), from receiving a benefit under the Will.

It is important to seek immediate advice from an experienced estate litigation lawyer if you believe your loved one’s Will has been forged. There is a brief window of opportunity to act before the Will is presented to the Court to be admitted to Probate.

What kind of evidence is considered by the Court?

For these types of claims, the main types of evidence used are:

Handwriting samples and analysis
Handwriting expert reports
Medical reports and clinical notes
Specialist reports
Witness statements from people who knew the deceased and knew the history of the relationship between the parties involved
Telephone log history and bills
Bank account statements
Facebook messages
Social media posts and history
Handwritten notes
Photographs to show history of relationships between parties
Digital notes in a person’s mobile or tablet device

Who can challenge a Will?

You must have ‘standing’ to challenge a Will. There are only certain categories of persons who can do so. These include:

If there was an earlier Will – a beneficiary in a current or earlier Will
If there was no Will – a beneficiary in accordance with the rules of intestacy

How can I challenge a Will?

It is important to seek immediate advice if you have concerns about the validity of a person’s Will. After that person passes away, there is usually a brief window of opportunity to take steps to ensure that the Will was properly made. Challenging the validity of a Will can be daunting, so it is important to seek advice from a lawyer who is knowledgeable and has experience in this complicated area of law. Contact our estate litigation team by calling 1800 621 071 to find out the next steps you need to take.

Who pays the legal fees if I challenge the validity of a Will?

The general principle concerning adversary litigation is that “costs follow the event”, which usually means that the successful party will have their costs paid by the unsuccessful party. However, in estate litigation, the court has discretion with respect to costs orders.

However, over the years, a number of exceptions to this general rule have come to be recognised. In the field of probate litigation, to such exceptions have come to be recognised as being:

Whether the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate maybe ordered to be paid out of the estate (sometimes referred to as the “testator’s fault” exception)
if the circumstances lead reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them (sometimes referred to as the “reasonable investigation” exception)

It should not be assumed in contentious probate litigation that the estate will bear the costs. However, the executor is generally indemnified for their costs provided they act reasonably.