Whilst losing a family member can be an incredibly difficult time, too often people are faced with will disputes between surviving family members regarding the validity of the deceased’s will. It’s not easy to contest a will and can be expensive if you don’t go with a no win no fee lawyer.
We often come across families who have recently lost an elderly or vulnerable family member who had been pressured or even forced into changing their will before their passing.
There can be multiple factors that can come into play when investigating suspicious circumstances and the validity of a will.
Fortunately, we do have laws that allow us to dispute or contest a will and they fall under three main grounds:
- Lack of testamentary capacity;
- Knowledge and Approval of the contents of the will or “Suspicious circumstances”; and
- Undue influence and fraud.
Lack of testamentary capacity
One of the biggest disputes in this field is proving that the testator (the Will maker) had the mental capacity to provide instructions and create a new will.
Ensuring that there is no “disorder of the mind” which may influence the views of the testator is very important, the court will look to prove that the testator also understood the following:
- The significance of the act of law they are embarking on;
- The assets and value that they possessed at the time of making the will;
- How the assets are to be distributed amongst their family or loved ones; and
- The consequences of their actions in making the will.
When solicitors are involved in drafting a will it is their duty ensure that they abide instructions provided to them with the assistance of doctors and family members. however it is ultimately up to the court to decide if there was a mental capacity at the time of the will being drafted.
If it is proven that the testator had the mental capacity to draft a will, there is also the factor of having testamentary intentions when doing so.
When investigating the possibility of challenging a will we also look at whether the testator knew and approved of the contents of the will when it was executed. Some red flags that we often look out for include:
- When there is an unexplained change of testamentary direction. Eg. Did previous wills leave equal shares of the estate to their children equally, but suddenly a new will has left all of the estate to one family member or carer?
- When one beneficiary is left out of the will. Eg. Has one child been left out of the will without any explanation?
- When the testator has been potentially controlled or influenced by a favoured beneficiary. Eg. Has the child that lives with the elderly parent suddenly been left with a larger portion of the estate?
- When the will was prepared by persons known to the beneficiaries rather than the Will maker? Eg. Was the elderly parent taken to their children’s solicitors and presented with a will that had already been prepared on their behalf?
- Suspicious conduct of the beneficiaries towards other parties after the will has been executed. Eg. Did a beneficiary try to hide or lie about the existence of a will?
Unfortunately fraud and undue influence can become a factor in challenging the validity of a will. Essentially the court would have to find that the testator had been coerced into preparing their will against their own wishes.
There are sometimes are clear examples of coercion or fraudulent behaviour such as bullying, physical harm, forging signatures and pretending to be the person signing the will, however in most scenarios this field can be incredibly difficult to prove as family dynamics and relationships can be incredibly complex. It’s not always straight forward – we’ve dealt with many tricky scenarios and family dynamics and we can navigate our way through so that a positive outcome is reached. Let us now if you want to contest a will.
How do I go about contesting a will?
To contest a will, you will have to tell us a bit about your situation. This usually done in person or can be done over the phone. Usually we will have an experienced lawyer and barrister who you can talk to and get solid advice from.
The laws surrounding provision claims can be quite complex, and also a very emotionally draining process. If you have been considering contesting a will you should seek legal advice as soon as possible. Contact us now on 02 9299 1424 to find out your chances of a successful outcome.
Interested in how courts assess a claim in NSW? Read this – The Grounds For Challenging A Will by Chief Justice Geoff Lindsay