Types of Will Challenges
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Challenging a will on the grounds the will maker did not have the required legal mental capacity to make a will.
Another term used for lack of mental capacity is “cognitive impairment” which greatly increases from age 65. According to the Australian Bureau of Statistics one in 15 people over 65 – increasing to one in four people over 85 – suffer from dementia. It is also estimated that each week in Australia 1600 new cases of dementia are diagnosed, a figure expected to grow to 7400 a week by 2050.
Dementia is described as a chronic or persistent disorder of the mental processes caused by brain disease or injury and marked by memory disorders, personality changes, and impaired reasoning, a chronic or persistent disorder of the mental processes caused by brain disease or injury and marked by memory disorders, personality changes, and impaired reasoning.
So, you can imagine that there may thousands of people in society who would be attempting to write a will either with or without a solicitor’s assistance and many of these will makers may have dementia. However, in these cases, all adults are presumed to have capacity, unless the contrary is established, in court, on the balance of probabilities for a judge to determine.
No one can stop any person from writing his or own will, with or without cognitive impairment, and it is only after the death of the will maker that a judge will be asked to determine whether or not the will is valid. On the other hand a solicitor is required to follow a client’s lawful, proper and competent instructions when preparing a will. When there are certain factors present, solicitors have a duty to ensure the client has the requisite legal capacity before either taking instructions or assisting them to make a will.
Challenging a will on the grounds the will maker did not have full knowledge of and give his/her approval of the will.
This type of will challenge is very similar to lack of mental capacity and sometimes they are both conducted in the course of a hearing before a judge at the same time. Of course
If a will maker did not have the required mental capacity to make a will (also known as lacking testamentary capacity, mental capacity) then clearly that will maker would not have the knowledge nor given his or her approval to the will because they were incapable of doing so at law.
However lack of knowledge and approval can apply when a will maker does have testamentary capacity and for example could occur when a will maker of sound has signed a will not fully understanding its contents and thereby not giving his or her approval to the will.
Take a case where the judge has decided that the will maker did indeed have testamentary capacity but then goes on to look at the evidence as to whether the will maker did not have knowledge of the contents of the will and therefore did not give approval to it. In such a case the judge might decide that the will maker was mentally capable of making a will but at the time of signing the document he or she did not understand the contents.
The rules regarding the preparation and signing of a will are very important in society to ensure the correct transfer of the assets to the person or persons intended by the deceased.
Challenging a will on the grounds that the will was written at a time when the will maker was being unlawfully influenced by others.
Sometimes this challenge is alleged together with and at the same time as lack of mental capacity and lack of knowledge and approval because all three allegations are often every closely related and the same evidence is used in relation to each challenge.Challenging the validity of a will on the grounds of undue influence (alone) is extremely difficult to win and accordingly very few cases have ever been successful. Over the past 100 years only three cases have been successful; one each in NSW, Victoria and Queensland.The onus of proving undue influence rests upon the person making the allegation and he/she must prove beyond doubt that the deceased will maker at the time of signing the will was actually unlawfully influenced. The two biggest hurdles to overcome is firstly the fact the will maker is no longer available to give evidence and secondly the influence alleged would have to be around the time of the signing of the will.In these cases common sense does not prevail. You and I may be fully aware that family member/s or a friend or carer has influenced the will maker by continually asking to be left in the will or even making threats about not looking after the will maker in his/her old age unless included in the will.However at law this type of influence is not sufficient to win the case. The influence required is actual duress (force) almost like holding a gun to the head of the will maker. Badgering the will maker is not regarded as undue influence. Continually harassing the will maker to include you in his/her will even to the extent of taking the will maker to your solicitor is certainly wearing him/her down however is not (in wills law) ‘undue influence’.However there is some good news. When all of the evidence is before the court regarding lack of mental capacity, lack of knowledge and approval and undue influence sometimes there is sufficient evidence for a judge to determine the will is invalid for one or more of the above reasons
Challenging a will on the grounds that the will was not the will of the deceased but in fact a fraud or forgery.
Challenge the validity of a will on these grounds usually does not involve the will maker. The allegation of course is that the will being challenged is not that of the deceased at all. The onus of proving the fraud or forgery rests upon the person/persons making the allegation. The evidence required is usually from one or more experts in the field of handwriting, pencil, ink, paper, photocopy machines and any other evidence proving a fraud or forgery.For example there have been several cases of will makers signing a document placed in front of them not knowing it was their will. And, other cases where documents containing the signature of a person on a document being photocopied onto a will then being produced as that person’s will. And, of course there have been many cases of people simply forging the signature on a will.
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Eric Butler: 1800 960 156