Challenging a Will
To challenge a will means to challenge the validity of the will itself. The main reasons to challenge often boil down to:
- Undue influence
- Lack of Testamentary Capacity
To challenge a will made in circumstances of undue influence requires evidence that one or more persons placed extreme pressure or unduly coerced the testator into providing assets for them in the will to the exclusion of other parties who may have reasonably been in the contemplation of the testator. Mere persuasion is not sufficient; the testator must have been placed in a situation of extreme pressure and/or coercion. A common example is where a testator remarries, and the new spouse emotionally manipulates the testator to leave assets to them at the exclusion of the testator’s children.
Fraud is another common challenge experienced by the Courts. To establish fraud, evidence must be presented to demonstrate fraud played a material role in the establishment of the will. For example, a beneficiary committing fraud to receive an entitlement under the will.
Evidence that someone else made the will or someone forged the testator’s signature on the will is necessary to establish forgery.
Lack of Testamentary Capacity
To make out a challenge on the basis of capacity, the following is necessary:
- The testator understood the nature of the will and its effect;
- The testator understood the extent of the property which was being disposed of
- The testator was able to comprehend and appreciate the claims (from other parties) to which he ought to give effect to.
- There was no disorder of the mind.
This ground has traditionally been difficult to establish. If you have suspicions that the testator did not have the capacity to make a will, it is strongly suggested you obtain legal advice and gather evidence.
We at Legalbit understand that will disputes can be incredibly challenging for those who have not dealt with the justice system before. Legalbit has a sensitive and empathetic team specialising in the various aspects of contested will disputes, including challenging or defending wills. We will ensure you receive professional services, so you understand all your options and feel your interests are protected.