CHALLENGING A WILL

Can a will be challenged?

There are a number of ways to challenge a will.  These include:

Lack of testamentary capacity

An interested party can challenge a will on the ground that the testator lacked testamentary capacity when the will was made.  The relevant time to judge capacity is at the time the testator gives instructions to a solicitor to draw up the will or when the testator signs the will. 

The law recognises that, even though a person may suffer from dementia or mental illness, that person may also experience periods of lucidity and may be capable of making a will during those periods.  Careful examination of the testator’s health and state of mind at the time of making the will is important but the question of capacity is not necessarily one in which medical evidence is conclusive.

A person is considered to have testamentary capacity if he or she:

• understands the nature and effect of a will

• generally understands 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.

Lack of knowledge and approval

A person may argue 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.

Undue Influence

This is a notoriously 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.

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.

Forgery

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.

Contract

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. 

Trust

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.

Family Provision

Under Chapter 4 of the Succession Act 2006 (NSW) 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.

The law in relation to wills is complex but our wills and estates lawyers can help guide you through the process.