There are several instances in which the Will can be challenged on the basis that it is not a valid will:
- where the willmaker did not have testamentary capacity to understand what they were doing when they made the will.
- where the willmaker did not know the contents of the will and therefore did not know and approved the will
- where the intentions of the willmaker are unclear in the will
- where the will has been forged or was created by fraud
- where someone coerced the willmaker to make the will or the will was created by the undue influence of another person
- where the will has been changed after the willmaker signed
- where the will has been replaced by another will or document and therefore has been revoked by the willmaker
For other situations where a Will Dispute may arise, see our page Will Disputes & Challenging a Will
Challenging a Will – Testamentary Capacity
Testamentary capacity is a legal concept that determines whether or not a person has the ability to make a binding will. Along with the formal requirements provided under section 6 of the Act, for a will to be binding the person making the will must have testamentary capacity. Where there is doubt as to capacity, a report should be obtained from a medical practitioner to determine whether the testator/testatrix had testamentary capacity at the time they made their will.
In Levy Estate – Application of Samuels
Palmer J found the testatrix lacked testamentary capacity pursuant to an application made under s 18 of the Act. The testatrix, Mrs Levy, was a 93 year old woman who had been diagnosed with dementia and was suffering from a severe cognitive impairment. A psychiatrist and a clinical neuro-psychologist had examined her and had come to the conclusion that, although she appeared at first impression to be in possession of her faculties, a closer examination revealed a severe cognitive impairment. Both came to the conclusion that, at the time she made her will, she lacked testamentary capacity. His Honor stated that: “the requirement that Mrs Levy lacked testamentary capacity was amply satisfied by the medical evidence.”
Therefore a will is invalid if the testator/testatrix is found to be lacking capacity at the time the will is executed. The test for capacity was established in Banks v Goodfellow where it was said:
Any degree of unsoundness of mind, however slight, and however unconnected with the testamentary disposition, must be held fatal to the capacity of the testator.
In brief, four things must be satisfied at the time the testator/testatrix executes the will to make the will valid. He or she must:
- Understand he or she is executing a will and what that means;
- Remember and understand generally the nature and extent of his or her property;
- Comprehend and appreciate any moral obligations he or she might have towards friends and family; and
- Be of sound mind, in that he or she is not affected by any disorder of mind to the extent that the will produced is one that he or she would not have made if of sound mind.
However, it is important to note that, it is possible for a person who, for example, has Alzheimer’s disease or dementia to execute a valid will during lucid intervals provided they satisfy the above four-part test at the time they make their will. The onus is initially on the person trying to prove the will, by showing:
- The will was duly executed in accordance with the Act; and
- There are no suspicious circumstances.
Once this is proven, the onus then switches to the party seeking to disprove the will by showing the testator/testatrix lacked the requisite intention to create a will when executing it.
Challenging a Will – Undue Influence
If the person who assisted the deceased in drawing up the will stands to gain from doing so, then that person may be required to prove to the court that there was no pressure, threat, force, trickery or fear involved at any time during the will-making process. However, there are forms of flattery and persuasion that the court will not deem unlawful. In these circumstances, the court will only allow the will to be successfully challenged on the grounds of undue influence where it is satisfied that the deceased’s mind and thought process were coerced to the point of making the resulting will being a contradiction of what would have been the deceased’s true intentions.
Undue Influence is difficult to prove unless there were reliable witnesses present who can vouch for what happened. To challenge a will on the ground of undue influence one must be able to prove the fact with supporting details and evidence. Any undue influence must be more than just coercion. It is only when the deceased person is coerced into doing something that they do not want to do that it can be deemed undue influence. The influence needs to be such that it overbore the free will of the deceased person.
The case of Wingrove v Wingrove is an example of a will being challenged on the ground of undue influence. In this case the Judge stated:
To be undue influence in the eyes of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence.
Challenging a Will – Forgery & Fraud
A will can be challenged if established that the will was procured by fraud or forgery. Fraud occurs when the testator has been tricked into signing the will. Examples of fraud include the making of deliberately false statements or suppressing material facts. Fraud can also occur in situations whereby the testator is presented with a document that they believe is a Power of Attorney or Deed when in actual fact it is the will, and they sign it.
Forgery differs from fraud because in cases of forgery the deceased is generally not involved in the creation of the will at all. In cases that involve forgery, the will itself can be forged, but so can the signature of the deceased. For example, the will might actually be valid, but the signature on it has been forged, which invalidates the will.
The person challenging a will on the basis of fraud or forgery bears the burden to prove it with supporting details and evidence. Challenging a will on the basis of forgery is difficult to prove and will typically involve the testimony of an expert in handwriting who is able to detect and prove discrepancies between the signatures. In such cases, it must be proved that the testator expressed their wishes elsewhere, by finding an earlier will, a draft, or reliable witnesses.