There are 5 main grounds to challenge the vailidity of a will.
1. Lack of testamentary capacity
The law requires that a will maker has a sound mind and memory to make a valid will.
The legal test (founded founded in an 1870 case called Banks v Goodfellow) asks if the will maker understands:
- what it means to be making a will;
- what assets they possess and are leaving to others;
- understands who can make a claim on their estate
Recent case example: Croft v Sanders (2019) NSWCA 303
The appellants alleged the deceased lacked testamentary capacity when he made a will in 2013. The asserted lack of capacity arose from alleged cognitive impairment (in the form of dementia) preventing him from weighing the respective claims of all his children to his estate, and secondly, from a pattern of delusions or hallucinations.
There was conflicting medical evidence in relation to the hallucinations and whether they were episodic or continuous. The rationality of the 2013 will, and the instructing solicitor’s evidence was relied upon to conclude the deceased had the requisite capacity and the will was upheld.
The court of appeal agreed
2. Lack of Knowledge and Approval / Suspicious Circumstances
There is a presumption that each will maker has knowledge and approval of the contents of their will.
Circumstances that may disprove this presumption includes:
- the will maker did not ever read the will or have it read to him/her before signing
- the will maker did not receive adequate time to consider the terms of the will
- the will maker did not receive independent advice
- the will was complex and the will maker was unsophisticated and unable to comprehend its terms;
- the terms of the will involve a major departure from prior wills;
- the will is written in a language that the will maker does not understand and with no translation;
- a person invovled in preparation of the will & takes a substantial benefit can lead to ‘suspicious circumstances’.
Once this claim is made, the onus of proof shifts to the party proving the will to show:
(i) the will is valid;
(ii) that the will maker knew and approved the contents of the will; and
(iii) the effect of the distributions made.
3. Undue Influence
A will maker can make a valid will if they do so freely and voluntarily.
Certain relationships have greater influence than others. Perhaps, the will maker values their opinion over others or they trust them more. This influence is not ‘undue’. You would not win an argument based on this relationship alone.
Did the influence coerce the mind of the will maker to draft a will in a particular way?
The court must be satisfied that a person was induced to draft a will contrary to their own wishes. ‘Undue’ relates to impairment of judgment rather than to improper conduct on the part of the person possessing influence.
This is not an easy argument. The evidence usually overlaps with other grounds such as lack of testamentary capacity and lack of knowledge and approval.
4. Failure to meet Formalities
A will must:
- be in writing (handwritten or typed);
- signed by will maker; and
- witnessed by two people at the same time who sign the will and the will maker intended to sign a will.
Unless the formalities are met, the court may consider the will to be invalid. The court has as discretion to consider the document to be an “informal will” which may be found to be a valid yet informal will.
5. Alleged Forgery or Fraud
“The signature has been forged”. A handwriting expert will be required to provide an opinion as to whether the handwriting of the will maker and signature on the will belonged to the same person.
Was the will maker misled into signing a will taking away their freedom to draft a will as the will maker intended?
The fraudulent conduct must have a direct effect on the making of the will and committed by the beneficiary for the sole purpose of receiving a benefit under the will. Circumstances which may suggest undue influence or fraud will often give rise to suspicion or doubt as to the will maker’s knowledge and approval of the contents of the will.
Some cases have been prosecuted in the criminal court…serious stuff.
Are you eligible?
If you are mentioned in a will or entitled to a share of the estate under intestacy rules, you are eligble to bring an application to challenge the validity.
Different to family provision claims, there are no time limitations to bring a claim mentioned above (*this only applies if the grant of probate was issued in common form not solemn form… we will save that discussion for another day).
It is always best to make the claim sooner rather than later.
If you beleive you have grounds to challenge the validity of a will or if you are an executor needing to defend a claim, contact us today for your free consultation.