An eligible person may challenge a will in the Supreme Court in a situation where there is doubt that the will is legally valid. A will may be challenged for a range of reasons and the process for challenging a will is different in each state and territory. This page deals with challenging a will in Australia.
Challenging a will vs contesting a will
It is important to be aware that challenging a will is very different to contesting a will.
A person challenges a will if they believe that the will is not valid. This may be because the testator lacked testamentary capacity, because there is evidence of fraud or undue influence or because the will was not signed and witnessed according to law. In contrast, a person contests a will if they believe that the provisions of the will are unfair and do not adequately provide for someone to whom the deceased had a moral obligation.
Who can challenge a will?
In order to challenge a will, a person must have ‘standing’. A person has standing to challenge a will if they are named as a beneficiary in the will or if they would be entitled to inherit under the intestacy laws of the state or territory where the will was made. For example, the spouse or partner of a deceased person will have standing to challenge the will.
Testamentary capacity
A will may be invalid because the deceased lacked testamentary capacity at the time they drafted or signed the will. Testamentary capacity is the mental capacity to understand the effect of a will and the nature and extent of one’s estate.
A person may lack testamentary capacity if they have a mental illness or intellectual disability that affects their cognitive capacity.
A deceased person’s testamentary capacity can be assessed by looking at evidence of medical and other treatment they were receiving, any medical or psychiatric assessments they underwent around the time the will was made and any support they required in making decisions and attending to their needs.
A person who wants to guard against challenges to their will on the basis of testamentary capacity may undergo medical, psychological or psychiatric assessments at the time they create their will, and store these with the original will.
Undue influence
A will may be found to be invalid because there was undue influence placed on the deceased to make bequests that they would not have made of their own free will. In other words, the testator was coerced to make the will or certain provisions of the will.
In order to accept that there has been undue influence, a court must be satisfied that:
- The will distributed property in a way that was unexpected
- The testator was dependent on or trusted a person;
- The testator was frail or vulnerable because of illness or injury;
- A person took advantage of the deceased and benefitted from the will’s distribution of assets
Undue influence can be difficult to prove and the burden of proof rests with the party making the claim. If there is evidence that the deceased understood what they were doing and was acting independently, the court will find there was no undue influence.
Fraud
A will may be found to be invalid if there is a likelihood that it was fraudulently created or has been tampered with. Signs that a will may have been forged include that the will is not signed, that the signature does not match other samples of the deceased’s signature, that the will contains errors that the deceased would have been unlikely to make or where bequests are made that the deceased would have had no reason to make.
When a will is challenged on the basis of fraud, the following principles apply:
- The onus of proof rests with the party defending the will. That party must satisfy the court that the will was made by a free and capable testator.
- Where circumstances have aroused suspicion, the party seeking to administer the will must prove that the deceased knew and affirmed the contents of the will.
- It is only when suspicion has been removed that the onus shifts to the party that is challenging the will to prove the matters they are alleging.
Legal requirements are not met
A will may also be challenged on the basis that it does not meet the formal requirements for a valid will. For example, if the will is not in a written form, if it is not signed or if it is not witnessed by independent witnesses, it may be found to be invalid.
However, wills that do not meet the formal requirements for a will may still be found to be valid if there is evidence that they express the deceased’s testamentary intentions. Courts have found wills to be valid even where they were made in the form of a video or a text message. However, when a will is made in a way that does not comply with the formal requirements of the jurisdiction, there is no certainty that a court will uphold it. For this reason, a person making a will should always ensure that the document is created in a way that minimizes the likelihood that it will be challenged.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
