The Top 8 Ways to Contest a Will

succession law Estate litigation has become increasingly complex.  There can sometimes be lots of room for argument, particularly when family members are at war with each other.

There are a quite a few ways to challenge a will.

It is important to note first that it is critical that a will is executed in the first place and that it has been properly prepared with the benefit of legal advice and expert drafting.  It is our experience that wills that are prepared properly are rarely successfully contested in Court. However, we think these are the Top 8 Ways to Contest a Will.

1.       Testamentary Capacity

An interested party can challenge a will on the ground that the testator lacked testamentary capacity when the will was made. A person is considered to not have testamentary capacity if he or she does not:

  • understand the nature and effect of a will
  • generally understand the extent of the property of which he or she is disposing
understands and recognises the people who have a natural claim upon his or her bounty, such as a spouse, children or other dependents. This assessment must not be affected by irrationality stemming from insanity or other disorders of the mind.

Old age or physical ill health, on its own, is not sufficient to prove lack of capacity.  It must also be shown that the testator lacked mental capacity which is both a legal as well as medical test.

2.       Lack of knowledge and approval

It maybe argued that the testator did not know and approve the contents of the will.  That is, the testator signed the will without fully understanding its contents.

If a will was read over to the testator when it was signed, there is a strong presumption that the testator knew and approved of its contents. But if the will was for example in English and the testator could not read or write English, and the will was not translated, then it may be argued that the testator did not have full knowledge and approval of the terms of the will.

3.        Undue influence, coercion, duress

The testator may be old and what we call suggestible, they might be alone and lonely, along comes someone whose sole motive is to befriend them and encourage them in such a way as to make a will that favours them. This is often a difficult ground upon which to challenge a will because it must be shown that actual coercion occurred.  Persuasion or moral pressure from interested parties does not amount to undue influence.

4.        Fraud, forgery  

There have been cases of gifts by wills induced by fraud. Fraud covers a wide range of conduct but it essentially involves deception or misrepresentation inducing the testator to make a will in a certain way.  An interested party may raise questions as to the authenticity of the testator’s signature or allege that the signature of the testator was forged.  The executors will be required to provide proof as to the authenticity of the signature. This will involve obtaining samples of the testator’s signature, examples of other handwriting and expert opinions.

5.       Lifetime gifts and contracts

It’s possible to claim that the deceased had an agreement with a person to give part of their estate to a person. This may amount to a contractual obligation on the part of the deceased. This can be extended further if a testator has agreed to leave a specific gift by way of will and the testator later disposes of the property or has insufficient assets to meet the gift at the time of death, the intended beneficiary may be able to claim as a creditor in the estate.  

6.       Constructive trusts

If a testator makes representations that he or she intends to leave all or part of his or her estate to a person and that person acts in reliance upon those representations, it may be argued that a constructive trust was created.

7.        Home made wills

It’s important that a will be prepared properly and home made wills often fail in this regard and, indeed, home made wills are often disputed not only because of their lack of formality, but because of other reasons referred to above. Home made wills are time bombs ticking away in people’s top drawers and filing cabinets throughout Australia.  Their clauses may be ambiguous, illegal and therefore void or otherwise ineffective.  A home made will is a “free kick” to an estate lawyer on the other side of dispute. Make a proper legal will!

8.       Inheritance Claims

While a will may otherwise be valid, the way in which the estate is to be distributed and the gifts made can be the subject of dispute under what is called the Inheritance Family Provision Act. Under the Inheritance (Family Provision) Act certain ‘eligible persons’ can make a claim for provision from an estate if they have been left out or not received adequate provision.

Eligible persons include spouses, de facto partners, same-sex partners, family members, children, step-children, adopted children and anyone who was financially dependent on the deceased or has a moral claim to a share of the estate. If a person such as a spouse or child has been left out of the will, or has been left with something but it is inadequate, then they can make a claim against the estate for greater provision which will have an impact on the distribution of the gifts in the will without otherwise effecting the terms of the will.

If someone close to you has recently passed away, and you have doubts about the legal validity of their will, or otherwise wish to make a claim against their estate, we urge you to give us a call on 8354 2233 before it’s too late.

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