Challenging a Will relates to the disputing the validity of the Will itself. This article is not about challenging the beneficial entitlements under the provisions of the Will.
The common grounds of challenging a Will are:
- Lack of Testamentary Capacity – If the Will-maker lacked mental capacity at the time of making the Will, whether due to mental illness or other factors.
- Undue Influence – If there is evidence that the Will-maker was unduly influenced or coerced by someone in a position of power, leading to modifications contrary to their true intentions.
- Fraud or Forgery – If there is evidence to substantiate that the creation of the Will was made by way of fraud or forgery.
- Improper Execution – Based on the original Will, there may be technical requirements that have not been complied with, which may render the Will to be invalid.
- Revocation or Subsequent Will – If there is knowledge or evidence that the Will-maker may have done a subsequent Will, which reflects the final intentions of the deceased.
- Mistake – Based on the Will, there may be significant errors or mistakes in the Will’s contents, which affects the distribution of assets to the beneficiaries.
To be eligible to challenge the validity of a Will, the challenger needs to be one of the following:
• A beneficiary specified in the deceased’s previous Will;
• A beneficiary mentioned in the most recent Will; or
• A person who would have been entitled to the estate if the deceased died intestate (without a Will).
It is best to challenge the Will before Probate has been granted, however, it is possible to make an application to challenge the Will after Probate has been granted. Challenging the Will after probate has been granted can be quite complex as the challenger needs to be able to prove the grounds for revoking the grant of probate.
It is typically the executor who defends the validity of the Will as it is often a beneficiary who challenges the Will. If the Will is successfully proven to be invalid, then the Court will treat the Will as if it did not exist. If this happens, the distribution of the deceased person’s estate will be based off the previously known Will (if valid and applicable) or it will be distributed in line with the intestacy laws. In order for a Will to be valid, the following needs to be followed:
• The testator is over the age of 18 and has testamentary capacity;
• It must be either handwritten or typewritten, and appropriately signed and dated; and
• Two (2) adult independent parties must witness the testator’s signature, and these witnesses cannot themselves benefit from the Will or be a spouse of the testator.
Testamentary capacity refers to a person having the mental ability to make decisions regarding their Will. They need to understand what they are doing, remember important information, and know the legal consequences of making a Will. Disorders and diseases play a significant part in whether a person is considered to have capacity in making their Will. Sometimes, a person’s behaviour or symptoms of a disease may make their family members concerned about their testamentary capacity. Conditions like dementia or mental illness may affect a person’s mental abilities, but it doesn’t automatically mean they lacked testamentary capacity. The Court looks at the severity of the condition and how it affected the person’s reasoning and decision-making.
If a Will is torn or marked accidentally and there is no evidence to suggest an intention to alter or revoke it, the executor of the estate must have the Will declared valid by the Court despite the damage by providing evidence about the circumstances of the damage and demonstrate that the testator did not intend to revoke the Will.
If the original Will is known to have been in the possession of the testator but cannot be found, it is presumed that the testator intentionally destroyed the Will to revoke it. If the original Will was held by someone else and is lost, the executor must present a copy (signed or unsigned) to the probate office. They must prove the accuracy of the copy, its valid signing and witnessing, and that the testator did not intentionally destroy the Will. If no copy can be found, the executor must attempt to locate where the original Will was kept. If the Will cannot be located, the estate Will be distributed according to the laws of intestacy.
If you believe that you have grounds to question the validity of a Will and are a person entitled to make the application or need assistance with defending an application, please contact us to arrange for an initial conference to discuss how we can assist you.
