Challenging a will

Challenging a will or the adequacy of a bequest occurs at a very difficult time for all involved.  Add to this the fact that the parties to potential litigation are family members, and it is a recipe for disaster.

There are several issues that arise when a will is sought to be challenged, and they can be separated into two distinct categories:

1.     Contesting the validity of the will; and

2.     Contesting the adequacy of the bequest.

Contesting the validity of the will must occur before probate is granted.  If probate is granted, for all intents and purposes, any claims against the validity of the will are lost.

The procedural step to protect a client’s position to challenge the validity of a will would be to lodge a caveat over the will, while the will is subject to probate proceedings.  This would prevent any probate being granted and would require a trial to prove the validity of the will.  It will also delay any provision claim as the Court cannot decide whether a provision under a will is adequate until a will is formally proven as the last will and testament. 

Contesting the adequacy of a bequest is commonly described as a Family Provision claim.[1] 

Notice must be given to the executors of an intention to make a Family Provision claim within six months of the date of death, and proceedings must be filed and served within nine months of the date of death.  These time limits are strictly enforced by the Courts.

An unfair will is not itself enough to succeed in a Family Provision claim. 

Contesting the validity of a will

There are several possible grounds to contest a will.  

Usually, the challenge is made on three grounds:

1.     The person making the will did not have the mental capacity to make a will (such as dementia or another mental ailment); or

2.     The person making the will was pressured into making the will - the will is not a reflection of their testamentary desires; or

3.     Some minor defect in the making of the will

Testamentary Incapacity

The relevant legal test of testamentary capacity is whether the deceased:

1.     Understood the nature and act of making the will and its effects;

2.     Understood the extent of the property that he was disposing of (but this does not extend to knowing the value of each asset);

3.     Was able to comprehend and appreciate the claims on his estate to which he ought to give effect; and

4.     Was suffering from any disorder of the mind such as delusions or hallucinations, which prevented the exercise of natural faculties.

Suspicious Circumstances

While this is not a ground to challenge the validity of a will, it does have significant evidentiary importance.  If a new will is made in suspicious circumstances a Court is more likely to entertain a claim of invalidity.

Undue Influence

Even if the testator has testamentary capacity, it may be possible to show that the testator’s mental capacity made them vulnerable to undue influence. The burden of providing undue influence is borne by the persons impugning the will.  However, it is a very heavy burden because it is a serious allegation.  It is necessary to show that the testator’s will was overborne and the will was produced as a result, that the act was contrary to the testator’s wishes. It is not enough that the testator was bullied, was frightened and fearful, or had been threatened, or that the person had appealed to the testator’s emotions.  

The Courts describe undue influence as “Undue influence, in a probate context, is constituted by conduct that overbears the will of the testatrix so that she makes the will without intending and desiring the disposition made thereby. The circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix. The volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will”.[4]

The basic point is that to prove undue influence, it must be shown that the deceased did not intend and desire the disposition. It must be shown that he has been coerced into making it.

In order to establish undue influence to vitiate a will, it is not sufficient to establish merely a prima facie opportunity for its exercise. Late in the nineteenth century, the English Probate Courts confirmed that the presumption of undue influence which arises in courts of equity founded upon the relationship of the parties was not open to be applied in probate matters.[5]

Compelling evidence will be required to make out undue influence.  

Practically, any previous wills should be obtained first to ascertain the claimants' entitlements under the previous will.  This is because if undue influence is made out, the current will, will be set aside and the most recent previous will, will be substituted its place.

Contesting the adequacy of the bequest

The basis of a family provision claim is that the deceased has not made adequate provision for the “proper maintenance and support” of a dependant person or family member.  These concepts are not defined, and the jurisdiction of the Court is entirely discretionary.

Detailed evidence is needed about the claimant's current financial position, financial needs and other costs and contingent expenses.  Consideration should also be given to the matters contained in Supreme Court Practice Direction 2 of 2007,[6] being the matters that are also required to be addressed in any court proceedings.

Notice of intention to make a claim must be given to the executors within 6 months of the date of death, and proceedings must be commenced within 9 months of the date of death.  These timeframes are strictly enforced, and any right to make a claim will be lost if these timeframes are not complied with.

The undated will

The fact that the will is undated is not fatal to a will being granted probate.

The Courts have previously held ‘while dating a document is not necessary for it to be adopted by a person who causes it to be produced, dating is often an indication that the document is in its final form and intended to be operative.

The document, itself, must also be considered in context.  An intention that the document is the will of the person who wrote it may be inferred from the physical form of the document itself. 

Also, important to bear in mind will be the degree of closeness in time of death to the preparation of the document; evidence of the deceased's state of mind leading up to the preparation of the document; and the availability of persons to act as attesting witnesses and the relative publicity given to the document’. [3]

Challenging a will is a hard decision, and is not an easy one to make.  However, time limits are strictly enforced and there is only one opportunity to make a claim. 

This is general advice only and is not intended to substitute obtaining specialist legal advice relevant to your unique situation.

[1] Pursuant to Part 4 of the Succession Act 1981.

[2] See s.18 of the Succession Act 1981.

[3] Newman v Brinkgreve [2013] NSWSC 371 at [106 – 109]

[4] Haggarty v Wood [2013] QSC 327, per Jackson J

[5] Birt and Anor v The Public Trustee of Queensland and Anor [2013] QSC 13

[6] http://www.courts.qld.gov.au/__data/assets/pdf_file/0009/86337/sc-pd-2of1997.pdf