What is a challenge to a Will?
A challenge to a Will is a dispute regarding the integrity and validity of the will itself.
Only one of the following may challenge a will:
1. a person who is a beneficiary in the current will;
2. a person who was a beneficiary in a previous will;
3. a person entitled to benefit if no will existed.
A Will may be challenged if the Will was created at a time when:
1. the willmaker was unduly influenced by others;
2. the willmaker was lacking the mental capacity to make the Will; or
3. there are suspicious circumstances surrounding the willmaker’s signing of the will.
Undue influence on the willmaker has long been a concern. The influence is deemed undue when there has been a certain amount of coercion on the willmaker.
Coercion in the context of undue influence can be in the form of violence or simply a small amount of pressure which induces a willmaker to make a change his or her will or make a one. In either case, the coercion must be such that if the willmaker could express his or her intentions they would say that the amended or new will was not their wish.
Lack of mental capacity
In order for a willmaker to have capacity the willmaker must understand the nature of the act of making a will and the effects of it. However, in order to understand the nature of making a will and disposing of property the willmaker must be of sound mind.
There are a number of factors which need to be considered when establishing that a willmaker did not have capacity to make a will. It is almost always necessary to have medical evidence in respect of the willmaker’s incapacity.
Some examples of what is a ‘suspicious circumstance’ include:
1. an unexplained change of direction of the will maker (the deceased person);
2. a beneficiary who is disinherited in the revised will, in the absence of any estrangement;
3. a favoured beneficiary having control of the deceased person;
4. the will being prepared by persons known to the beneficiaries as opposed to the deceased person; and
5. the conduct of a favoured beneficiary towards a disinherited beneficiary after execution of the will.
The Court needs to be satisfied that there were circumstances surrounding the execution of the will which excite suspicion that the will does not reflect the intentions of the deceased person.
Less common will disputes
Some of the less common disputes involving wills include:
1. whether the will is valid; or,
2. the removal of executors or trustees;
3. missing beneficiaries;
4. estate administration disputes;
5. there has been a delay in proving the will or administering the Estate.
These disputes are sometimes referred to as ‘Will disputes’ and not as a “challenge to a Will’.
If there are issues surrounding a will which with our extensive experience as Wills and Estates specialists, we can swiftly identify issues within your circumstance and provide you with accurate advice and estimations.
If you have any doubt or questions, whatsoever, in regards to challenging a Will, contact our Wills Estates Probate specialists today as strict time limits apply to Will disputes.
Call 07 3035 4077 to speak with our team now