25 Sep Grounds for Challenging a Will

What are the grounds for challenging a will?

Family members, dependants and beneficiaries named in a will may distrust the will’s validity, alleging that it should not stand as the testator’s last will. To challenge a will an applicant requires ‘standing’, which essentially means they must have an interest in the proceedings either as a beneficiary named in the current will or a former will, or they are an eligible person on intestacy.

Time limits to make claims

There are no definite time limits for challenging the validity of a will, although there is a better chance of success if it is initiated before the grant of probate. After probate has been granted the process is much more difficult as a successful challenge requires the revocation of the grant and an explanation as to why it was not prevented from happening in the first place.

If the challenge is not in relation to the validity of the will itself, but more about whether enough provision was made through the will, then that is dealt with under different grounds (Part IV claims) – see my other articles about being left out of a will.  Those claims generally have to be brought within 6 months of the probate being granted.

Otherwise, the following are the main grounds to challenge the validity of a will:

Lack of testamentary capacity or intent

To have the necessary testamentary capacity a person must, according to the Court:

1. understand the nature and effect of the will;
2. understand in general terms the nature and extent of their property;
3. comprehend and appreciate the claims to which they ought to give effect;
4. weigh the respective strengths of those who may have such claims; and
5. not be suffering any delusions with regards to those people that should be considered when making the will.

If it can be proven that the will maker not to have had the mental capacity at the time instructions were given, or upon execution of the will, then it is invalid. To determine capacity, the following evidence may be considered:

• retainer instructions, file notes and other records made by the solicitor who drafted the will;
• statements from the witnesses to the will’s execution;
• any relevant medical records;
• any evidence on the conduct and health of the testator at the time the will instructions were given or the will executed.

Lack of knowledge and approval

The testator must know and approve of the contents of their will. A lack of knowledge and approval of the will contents might occur either through fraud, mistake, or the delegation of another to determine and draft the contents of the will. Will challengers must raise a suspicious circumstance concerning execution of the will and ultimately it is down to the challenger to prove their case. A solicitor’s retainer instructions should generally show the instructions given by the testator that are consistent with the may negate suspicion.

Fraud

Fraud involves fraudulent conduct by a beneficiary either by misleading a testator into giving them an unwarranted benefit or preventing a benefit being given to another person. The alleged conduct must directly influence the testator for the sole purpose of creation or prevention of that benefit. Fraud is concerned with misleading or deceptive conduct – instilling in the mind of the testator false and delusive notions. The party alleging fraud must produce evidence of their claim such as false statements or the suppression of material facts.

Undue influence

Evidence of undue influence must show coercion, rather than persuasion. It may consist of either psychological or physical threat and must result in the testator making a will against their wishes. Undue influence can invalidate a will leaving it inadmissible to probate, or invalidate just part of a will. An allegation based on surrounding circumstances must still prove that the testator’s volition was overborne producing a will contrary to their intention.

Forgery

There needs to be direct evidence that the will was not signed by the testator and is, in fact, a forgery. Australian courts have been reluctant to find the testator for the sole purpose of creation or prevention of that benefit. Fraud is concerned with misleading or deceptive conduct – instilling in the mind of the testator false and delusive notions. The party alleging fraud must produce evidence of their claim such as false statements or the suppression of material facts.

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