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September 4, 2017 |

Challenging a will alleging undue influence.

In Australia it is extremely difficult to successfully challenge a will based on the grounds of undue influence: So difficult here that there have only been about three successful cases in the last 100 years. And each of those cases    has been in conjunction with a finding by the judges of the will makers lack  of testamentary capacity. 

In Australia you must prove the will maker was actually coerced into making the will against his or her wishes. Proving harassment and/or other inappropriate conduct against the will maker will do you no good. 

 

However if you lived in California USA for example you would have a much fairer chance of success in circumstances where a will maker has clearly been taken advantage of, but; not in Australia.

The following portion of Californian legislation, is in my opinion, good legislation and it’s a pity it does not exist in Australia. So when you read it be aware that virtually all of it does not apply in Australia.  So, if your case is like any of the examples hereunder, common sense would tell you that you would have a good case. Yes you would in California but not here in any Australian States.

 

So, when reading the information hereunder please read it as confirmation that if the evidence fits your case here in Australia for challenging a will you will not have a successful claim.   

Here is the California law;

  “ (a) “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered:

(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.

(2) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.

(3) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, all of the following:

(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep.

(B) Use of affection, intimidation, or coercion.

(C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.

(4) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship. 

So all the common sense goes to California but as states from the beginning of this article that common sense does not apply in Australia because we follow the English law and the evidence here is that the will maker would have to literally forced to make a will.

Eric Butler

doyles Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

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