There are at least sixteen (16) ways a Will can be challenged. In this article we discuss
the sixteen (16) ways for contesting a Will as well as the bases for making a challenge.
Persons thinking of making their Will may not be aware that their intentions for the
distribution of their estate after death can be thwarted for various reasons, as set out
below.
- Family Provision Claims by Eligible Persons Under the Succession Act 2006
(NSW)
The Succession Act 2006 (NSW) makes provision for certain family members to
challenge a Will, on the grounds it left the claimant without adequate provision for his
or her proper maintenance, education or advancement in life.
The claimant must prove the Will fails to make such provision, based on his or her
circumstances at the time of the hearing, and generally means financial needs.
‘Eligible person’, in relation to a deceased person under section 51 of the Succession
Act 2006 (NSW) means:
- Spouse at death of deceased;
- De Facto spouse at death;
- Child of deceased;
- Former spouse;
- A person:
- Who was, at any time, wholly or partly dependent on the deceased; and
- Who is a grandchild of the deceased or was, at any time or at any other
time, a member of the household of which the deceased was a member;
and - A person with whom the deceased was living in a close personal
relationship at the time of death.
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- Lack of Testamentary Capacity
To have the necessary testamentary capacity a person must, according to Banks
v Goodfellow (1870) LR 5 QB 549, 565: - Understand the nature and effect of the Will;
- Understand in general terms the nature and extent of the property;
- Comprehend and appreciate the claims to which they ought to give effect;
- Weigh the respective strengths of those who may have such claims; and
- Not be suffering any delusions with regards to those people that should be
considered when making the Will.
If a testator or testatrix is deemed not to have had the mental capacity at the time
instructions were given, or upon execution of the Will, then it is invalid. - Lack of Knowledge and Approval
The testator or testatrix must know and approve of the contents of their Will. Prima
facie a properly executed Will carries a presumption that the testator or testatrix knew
and approved of its contents.
A lack of knowledge and approval of the Will contents may occur either through fraud,
mistake or the delegation to another to determine and draft the contents of the Will.
Will challenges must raise a suspicious circumstance concerning the execution of the
Will. A person seeking to uphold the Will must prove that there was knowledge and
approval of the Will’s contents. Ultimately the burden is on the challenger to prove their
case. - Fraud
Fraud involves fraudulent conduct by a beneficiary, either by misleading a testator or
testatrix into giving them an unwarranted benefit or preventing a benefit being given
to another person. The alleged conduct must directly influence the testator or testatrix
for the sole purpose of creation or prevention of that benefit.
Fraud is not concerned with the overpowering of volition as in undue influence, but
rather with misleading or deceptive conduct – instilling in the mind of the testator or
testatrix false and delusive notions.
The party alleging fraud must produce evidence of their claim such as false statements
or the suppression of material facts.
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One common example of such conduct includes leading the testator or testatrix to
believe they are signing something that is not a Will. Another is to mislead the testator
or testatrix into making a Will that they would not otherwise have made. - Undue Influence
Evidence of undue influence must show coercion, rather than persuasion. It may
consist of either psychological or physical threat and must result in the testator or
testatrix making a Will against their wishes. The coercion must be so great that the
resulting Will is inconsistent with intentions of the testator or testatrix.
Undue influence can invalidate a Will in its entirety, rendering it inadmissible to
probate, or invalidate just part of a Will. For example, a specific gift may be nullified
leaving the remainder as a true reflection of the wishes of the testator or testatrix. - Forgery
There needs to be direct evidence that the Will was not signed by the testator or
testatrix and that the signature is in fact a forgery.
Australian courts have been reluctant to find a Will to be invalid without strong
evidence, particularly so in cases of alleged fraud or undue influence.
Motivated by self-interest, many allegations are found to lack substance and great
care is required before embarking upon such a course of action as a cost order will
follow an application found to have little merit. - Revocation by A Subsequent Will
Proof of a subsequent Will invalidates the earlier or penultimate Will. - Informal Documents
A document which does not comply with the formal requirements of a Will as to
execution under section 6 of the Succession Act 2006 (NSW) but which purports to
state the testamentary intentions of a person may be declared a valid Will under
section 8 of the Succession Act 2006 (NSW) if the Court is satisfied that the person
intended it to form his or her Will, or an alteration to his or her Will or a full or partial
revocation of the Will. - Automatic Revocation of a Will by Marriage
Section 15 of the Succession Act 2006 (NSW) provides that a Will is revoked by the
marriage of a testator or testatrix. The exception are:
P a g e | 4 - A Will made in contemplation of a particular marriage.
- A Will that is expressed to be made in contemplation of marriage generally.
- Agreement to Make Mutual Wills
A contract to make mutual Wills can be enforced, provided there is clear evidence of
intention:
- That the Wills are not to be revoked; and
- To enter legally binding relations.
11.Implementation of a Will Depends on How, By Whom and What Assets Are
Held at Death
The provisions in a Will can only have effect if the assets held at death are in such
form, quality, or ownership which enable distribution. The terms of the Will can fail
where the assets are not held, or are held in trust, or in joint names, or by another
entity, or where claims on the estate consume the assets.
12.Intestacy
If a beneficiary predeceases the testator or testatrix and no substitute beneficiary is
named, the estate can pass on as intestacy or a partial intestacy. Legislation specifies
who will inherit, and these may not be persons intended.
A Will should always take into account alternate positions depending on whether the
testator or testatrix predeceases or survives beneficiaries.
- Construction Suits
In a Will, where there is uncertainty or ambiguity as to meaning, the Executor or
beneficiaries may apply to the Court to construe the Will. - Charitable Gifts
Gifts to charitable institutions should:
- Ensure the charity’s correct legal name at the date of the Will is stated;
- Provide for substitution if at death the charity ceased to exist, changed its name
or amalgamated with another entity; and - Contain a general charitable intention to uphold the gift to such charitable
institution which in the executors’ opinion most closely meets the objects and
aims of the named charity.
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- Statutory or Court Authorised Wills
An application to the Court before death but after loss of capacity of a testator or
testatrix may be made on the basis the proposed Will is reasonably likely to be one
the person would have made if he or she had testamentary capacity. - Forfeiture Rule
A person who unlawfully killed another is precluded from benefiting from the deceased
person’s estate.
Conclusion
The abovementioned ways in which a Will can be challenged arise from time to time
in the course of the management of deceased estates and need to be borne in mind
when considering the effectiveness of a Will after your death.
We are committed to working with our clients to tailor our delivery of services
on different levels. If you require assistance executing or updating your present
estate planning documentation, please contact us on (02) 9191 9293 or email us
at mail@rnlegal.org.