Challenging a will – it sounds like a bit of a television drama, doesn’t it? The truth is that will challenges often involve legal sagas and family drama. If you don’t want your family’s affairs aired in a public arena, you may want to think twice about bringing will validity proceedings.
Judgments in estate litigation cases are published. You can read of matters where the black sheep of the family comes out of the woodwork after being estranged for many years to seek provision from an estate, forged signatures being passed off as the deceased’s signature on the will, or neighbours who coerced the deceased to leave their house to them.
So, what do you do if you think something is not quite kosher and you want to challenge the validity of a will?
There are a number of grounds upon which you can challenge a will.
Ground one: Testamentary Capacity
If the will-maker lacked the capacity to make a will, it could be declared invalid. The old English case of Banks v Goodfellow sets out the test for testamentary capacity.
The Will maker must:
- Understand the nature of making a will and its effect;
- Understand the extent of his or her property;
- Comprehend and appreciate the claims that could be brought on his or her estate;
- Not suffer from any delusions or disorders of the mind.
Ground two: Knowledge and Approval
A will can be challenged if a will maker did not know and approve the contents of the Will.
Ground three: Undue Influence
If someone was getting in the testator’s ear, you may suspect undue influence. However, suspicion is not enough to prove undue influence. You need to produce evidence of coercion.
Ground four: Forgery or Fraud
If you have evidence that someone forged the testator’s signature on a will, you could argue that the will is invalid on the basis of forgery.
Another basis for invalidating a will is fraud. For example, if you find out that a beneficiary has destroyed a later will, to get a greater benefit from the estate at the expense of other beneficiaries, this could be considered fraud.
Ground five: Contesting the terms of a Will
You may be able to contest the terms of a will and seek an order for provision or further provision from the deceased’s estate. These contests are called Family Provision claims and to bring them, you must be an eligible applicant, which includes a surviving spouse and children of the deceased.
The Legal Showdown
When preparing your case, we recommend that you gather as much evidence as possible.
Unless the matter can be resolved in some form of alternate dispute resolution, it will be up to a judge to determine the verdict at a hearing.
If you find yourself in the midst of a will challenge, consider obtaining legal advice. The right lawyer can guide you through what can be a complex legal landscape. At de Groots wills and estate lawyers, our team of litigators regularly handles disputes involving the validity of wills. If you wish to discuss your particular circumstances, please call us on (02) 9101 7000.
By Maree Harris
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