If a family member or loved one has recently passed away and you feel that something is wrong with the will that they have left behind, then there may be grounds for contesting their will or challenging it in court.
What is a will?
A will is often also referred to as the Last Will and Testament. It is a legal document which lays out how the person making the will wants their estate to be left following their death. The person making the will is known as the testator, and their estate includes such assets as property, money, savings and possessions.
If no will is left when a person dies then the law dictates how assets will be distributed. This is through the rules of intestacy. This could mean that the people who you wanted to inherit your estate following your death will get nothing, and that people who you didn’t intend to benefit from your passing end up with everything. To find out more about the rules of intestacy, click here.
By making a will, it should be the case that everyone understands how you wished to leave your estate, and therefore it is vitally important to make a will. However, a will is not necessarily the final say that many people think it is, as there are certain situations where it can be challenged or contested.
The first step when contesting a will
Contesting a will is not a simple process. It is extremely complex and usually very demanding in terms of both time and money. It is therefore very important to seek effective legal advice from the outset. Embarking on a claim to contest a will without seeking legal advice and without having legal knowledge can be extremely costly. There can also be time constraints involved, which can be as little as six months from the date of grant of probate, so it is important not to waste precious time.
Contesting a will is also extremely demanding emotionally for all concerned, as by its very nature it will probably consist of arguing and battling with other family members and friends over the estate of a mutual loved one, at a time when you are still coping with the grief and heartache of losing that loved one. You cannot base a claim on raw emotion – you need to have valid legal reasons to contest a will.
Grounds for Contesting a Will
In order to contest a will, there needs to be valid legal grounds to do so. We look at these below.
Lack of valid execution
A key reason for contesting a will is if you believe that it has not been correctly executed. This is also known as “lack of due execution”. To be valid, a will must comply with Section 10 of the Succession Act 1981 (Qld). According to this, a will is considered to lack valid or due execution if it fails to meet one or more of the following criteria for a will:
- The will must be in writing and signed by the testator or signed by someone else in their presence who has been directed to do so by the testator.
It must appear that the testator intended by their signature to give effect to the will.
The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.
Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness
The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors.
Witnesses must be aged 18 or over, and you cannot leave your witnesses or their married partners anything in your will.
There are some exceptions to the requirements of Section 10.
Undue influence is a key reason for contesting a will. Demonstrating undue influence means showing that there was coercion, manipulation, deception or intimidation by someone in order to put pressure on the testator, influencing the content of the will to the advantage of the person applying undue influence when the will was made. Threats, physical violence, confinement and deception are all examples of someone using undue influence on the testator.
However, emotional appeals to the testator are not considered to be undue influence. Examples of this include frequently reminding a loved one of all the times you have helped them, complaining to them about how poor you are and how you are struggling, or providing services such as fetching shopping in the hope that you will receive a reward when it comes to the will. This is emotional influence, and although you may disagree with it, it is perfectly legitimate.
Ultimately, courts have to decide whether or not the testator is likely to have been thinking “this is not what I want to do, but I have to do it” for it to be accepted that undue influence has taken place.
Lack of testamentary capacity
In order to make a valid will, a person must be considered to be of “sound mind”. This means that, according to principles laid out in the English 1870 case of Banks v Goodfellow, the person making the will must:
- Understand that they are making a will
- Understand the effect of that will
- Know the extent, nature and value of their estate
- Understand the consequences of including and excluding certain people in their will
- Not be suffering from any “disorder of mind” which may influence their views
If you believe any of the above to be true then this is the starting point to challenging a will on the grounds of lack of testamentary capacity.
In order to use lack of testamentary capacity as a reason for contesting a will, you have to have evidence that the testator was not mentally capable of making the will at the time that they did. The only forms of acceptable evidence to prove this are medical or psychiatric assessments by experts based on their opinion of the testator’s state of mental health at the time they made the will. A crucial part of these assessments will be the testator’s medical records, and evidence from witnesses who had contact with the testator at the time the will was made.
Ultimately, the evidence needs to show that the testator was suffering from a condition which would have affected them when making their will, such as a long term degenerative illness, or drug or alcohol consumption. If it can be proven that this condition led to the testator producing a will which was different from one they would have produced if they have been of “sound mind” then contesting the will is likely to be successful.
Lack of knowledge and approval
When a person is signing a will, they must know that they are signing a will, have knowledge of its contents and approve of its contents. Although the testator did not lack testamentary capacity, they may not have known and therefore approved the content of their will if they were:
- deaf and/or dumb
- unable to speak
- unable to write
If the testator falls into one or more of these categories, it must be proved that they knew and understood the content of their will.
Fraudulent wills and forged wills
Perhaps the most obvious reason for contesting a will is if you believe that it has been forged, the signature has been forged, or if you believe that fraud has taken place. Although this is a valid reason for contesting a will, it is often very difficult to prove and usually very costly to do so.
Rectification and construction claims
A typographical or clerical error or failure on the part of the person preparing the will to understand the testator’s instructions can mean that it does not properly express the wishes of the testator. This can be grounds for contesting a will if it has resulted in you suffering a loss as a potential beneficiary. If this is the case, you can apply to the court for the will to be changed (rectification) within six months of the date of the grant of probate. This allows for a court to rectify a will only if it satisfied that there is clear evidence of a typographical or clerical error, or clear evidence of an obvious failure to understand the testator’s clear instructions by the person drawing up the will. A construction case may be brought if the wording of the will is unclear or ambiguous, meaning the court has to decide what was meant by the words in the will.
Contesting “death bed” wills
Death bed wills can often be highly controversial. These are wills which were made days or hours before the death of the testator. Although there is nothing wrong legally with a will made hours before a person’s death, they are often viewed with deep suspicion and scepticism to say the least by relatives who feel that they have been denied what was rightfully theirs as a result of a last minute change of heart. Death bed wills can be a particular source of friction if the testator has recently remarried, has children from a previous marriage, or was in a relationship with a much younger partner. The fact that a will was made shortly before the testator passed away is not grounds for contesting a will, but you may be able to contest it on the grounds of undue influence or lack of testamentary capacity. However, success is not guaranteed, even in the most extreme cases.
Challenging a will
A will might be perfectly legal and legitimate, and so you can’t contest it, but you might not be happy with the provisions made in it. In this scenario, you can challenge the will. There are two ways by which you can legally challenge a will.
Proprietary Estoppel is a legal challenge which you can use if you feel that someone gave you assurances during their lifetime that you would inherit their land or property, but then they did not honour that commitment in their will. Whilst people are of course allowed to change their mind, if someone has acted in a certain way because of a commitment made by the testator, only for that promise not to have been fulfilled and thus for them to have been left at a disadvantage as a result, then this challenge could be legitimate.
Family Provision Claim You can use this to argue that not enough provision was made for you in the will if you were financially dependent on the deceased. This is a complex area of Law and often quite costly to contest.
Challenging trustees or executors
Whilst you may not dispute what is written in the will itself or the legitimacy of the will, you may have an issue with the way that executors, trustees or personal representatives who have been appointed in the will are acting. For example, you may wish to challenge their conduct or competency. We can help you through this process.
What happens if you are successful?
If a will is successfully contested then it will be declared invalid. It is then replaced as the testator’s last will and testament by the next most recent valid will. If there isn’t another will, then the rules of intestacy will apply instead.
Whilst the above provides an overview to contesting a will, each case is different, and so it is important to always seek professional legal advice to discuss your individual situation.
Feel free to call our Estate Management Team.