As our Australian population ages, more of our elderly are faced with managing their longevity while losing their mental capacities due to dementia, Alzheimer’s or other illnesses. Sadly, financial elder abuse in the form of undue influence is also on the rise. It is therefore becoming more common for a will to be contested for its validity where there is concern that the deceased didn’t have the capacity to make the will or was unduly influenced by someone in the process.

If a will is contested in this way, this can trigger the need to make what is called an application for a ‘solemn form’ grant of probate. This just means that the application is heard by the court like a mini trial, with relevant evidence from witnesses, treating doctors and more. The application has to be served on all people with an interest in the estate (whether under the last will, a prior will or on intestacy).

There are a number of reasons a will might be challenged. It is often the case that disappointed relatives believe a will to be ‘unfair’ and conclude that the willmaker must not have had capacity to make it. But an apparently unfair will does not automatically indicate that it was made without capacity or through coercion. A perfectly capable testator can make an unjust or cruel will!

That said, the law does recognise that the following factors might signal that the will was made in ‘suspicious circumstances’:

  • An unexplained change in how wills were made in the past;
  • Unjustified disinheritance of a beneficiary (for example, where the relationship with the deceased was not estranged);
  • Where the will was not prepared by the willmaker’s usual solicitor, or where it was prepared by the beneficiary’s solicitor; or
  • Where a favoured beneficiary was in a position to control or coerce the willmaker.

1. Testamentary capacity

To have testamentary capacity, the willmaker should have ‘sound mind, memory and understanding’. Generally, they should be able to understand what it is to make a will, list what assets they own (in a general way) and identify the people they wish to benefit (or who might have a claim on their estate).

If a person suffered from a ‘disorder of the mind’ such as advanced dementia, paranoia or delusions, then their capacity to make a will might be limited to moments in which they were ‘lucid’. Even delusions are only relevant to the question of capacity if they are connected to how the estate was to be distributed. If a person believed that Einstein told them the cure for cancer in a dream, that delusion would not be relevant to the issue of testamentary capacity because it has nothing to do with how they made their will. On the other hand, if they believed that one of their family members was stealing from them by breaking into their home at night, and changed their will based on this belief, that delusion would be relevant.

Having a treating medical doctor certify a person’s capacity to make a will, coupled with evidence given by the witnesses to the will and evidence from the solicitor who prepared it (if one was involved), will usually be enough to establish whether or not the willmaker had capacity. This is not always the case, however, and broader investigations sometimes need to be carried out.

If a willmaker commits suicide very soon after making a will, this does not mean that the will is presumed to have been made without capacity. In a case in Queensland, an unsent text message typed on the deceased’s phone, found near the body following a suicide, was held to be an informal will.

2. Undue influence

Wills can also be challenged if they are made under the influence of an overbearing relative, friend or adviser.

What constitutes undue influence? For there to be undue influence, there must be coercion, which can happen if there is an imbalance of power in the relationship.

Often, undue influence is coupled with the willmaker’s loss of testamentary capacity, such as in circumstances where their mental faculties are not as resistant to suggestion or influence as they might have been in the past. For this reason, it is not common to challenge the validity of a will based on undue influence alone, but rather coupled with a challenge around capacity.

The typical people to challenge a will are those who took a greater interest under a prior will. This challenge is usually done by filing a ‘caveat’. This is a court document that stops a grant of probate from being issued or asks for one to be recalled, and then requires a solemn form application to be made to the court. Caveats will usually expire after six months. If the caveat is filed without proper grounds, then the person filing it can be ordered to personally pay the costs of having the caveat set aside.

Although there is no strict time limit, steps should be taken quickly, preferably within six months from the date of death. This is because an executor can start to make distributions under a will once six months from the date of death has passed, as long as they have not received notice of any claim. Once the estate is distributed, the opportunity to challenge the will is lost.

If you have concerns that the last will might not have been valid through either impaired capacity or undue influence, then you should call us immediately. Click here to book a complimentary 15 minute consultation on your next steps, and to arrange an appointment to meet with us.

We have tried to keep legal jargon to a minimum on this website and in our blogs, but we have included an easy to understand glossary to help you better understand the legal terms you might see along the way.

Zinta Harris

Meet Zinta

Founder and Principal of Resolve Estate Law. Accredited Specialist Business Law (Qld) and Accredited Specialist Succession Law (Qld). TEP Society of Trust and Estate Practitioners.

I am Zinta Harris. I live in Brisbane, Australia with my husband of 25 years, Craig (known by most as Harry) and our two children Teja and Zigi. I am a specialist wills and estates lawyer by day and inspiration seeker by night. I help Australian families navigate the legal fallout after the loss of a loved one in a calm and compassionate way.

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