Challenging a will can often affect relationships and heighten emotions during an already difficult time, partiuclarly if you are in disagreement with close family members.
At Sydney Mitchell, our Contentious Probate team is dedicated to offering clear and effective advice. We endeavour to ensure that you understand the legal aspects of your case and feel supported through each stage of the process.
Contesting a will
To be valid, a will must meet certain requirements both in its preparation and in its execution. If it does not, then it can be contested.
If you have concerns about a will, you may be able to bring a claim to contest its validity, or ask the court to interpret or rectify the wording of the will.
On what grounds can I contest a will?
A will can be contested for a number of reasons:
Lack of testamentary capacity
To be valid, the person making the will (the testator) must have had ‘testamentary capacity’. In other words, they must have been of sound mind when making the will. This means that the testator making the will must:
- Have understood the fact that they were making a will and the terms of that will.
- Have had a reasonable understanding of the type and value of the assets they owned and are leaving in the will.
- Be aware of any people who might reasonably expect something to be left to them in the will; and
- Be free from any delusion of the mind that could cause them not to benefit those people.
These requirements were established in the well-known case Banks v Goodfellow (QBD 1870).
Knowledge and approval is presumed where instructions were taken correctly, and the Will was executed in accordance with the law.
However, in certain circumstances further evidence is required to show that the testator knew and understood the contents of the Will, including when:
- The testator cannot speak or write;
- The testator is paralysed;
- The testator is blind or illiterate.
Undue influence
This is when a testator is pressured or coerced into making a will that does not reflect their true wishes. For example, this could be by omitting somebody from the will entirely, or making a sizable gift to someone who would not otherwise have benefitted in such a significant way, thereby reducing what the residuary beneficiaries of the estate would ultimately receive. This is often claimed where the deceased was vulnerable or easily influenced, i.e., someone has influenced the testator to favour themselves over others.
Fraudulent and forged wills
If either fraud or forgery can be proven in connection with a will, then the will will be deemed invalid.
In such cases an expert may be appointed to assess the validity of the document, including whether the signature on the will matches the testator’s previous signatures. Other evidence will also be required, including statements from the witnesses of the will and evidence surrounding the circumstances of the drafting of the will and its execution of the.
Lack of valid execution
For a will to be valid, it must comply with the stringent requirements of the Wills Act 1837, namely:
The will must be in writing and signed by the testator or where that is not possible, it can be signed by someone in their presence and at their direction.
When signing the will, the testator must intend to give effect to the will.
The testator should sign the will in the presence of two witnesses, however, a will can still be deemed as validly executed in circumstances where the testator, in the presence of the two witnesses affirms to then that that the signature indicated on the will is his/hers, and asks them to then sign the document as witnesses.
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