Segelov Taylor

Help with invalid Wills

Making a Claim that a Will is not valid

In order for the Court to give effect to a Will it must be satisfied that the instrument represents the testamentary intention of the deceased person.

A challenge to a Will is where a person claims that a Will should not be accepted by the Court as valid.  A challenge may be made to a will on the basis that:

  • the deceased lacked testamentary capacity;
  • the deceased was subject to undue influence:
  • the Will does not meet the formal requirements of a Will (although the Court may make a grant of letters of  in respect of an informal Will).   

Testamentary Capacity

A person making a Will must have testamentary capacity. This means they must be of sound mind, memory and have understanding at the time of making the Will. A person is regarded as having the required capacity if they:

  • Know what a Will is;
  • Realise in general terms the amount and type of property they are disposing of;
  • Can weigh the “moral claims” they should be considering when deciding who to leave property to; and
  • Know and approve of the contents of the Will.

Undue Influence

A Will can also be challenged if there is a suggestion that the person who assisted the maker to draw up the Will stands to gain from the Will. A court will however only overturn a Will on the grounds of undue influence where it is satisfied the Will maker’s mind was coerced to such an extent that the resulting Will was contrary to the Will maker’s real intentions. This is extremely difficult to prove.

How to Challenge a Will

The usual course of events involves the challenger lodging a caveat against a grant of probate being made without notice being given to them. The executor then files proceedings seeking a grant of probate with the executor being named as the plaintiff and the challenger as the defendant. In some circumstances, a challenger may seek their own grant of probate. Once the proceedings have been commenced, the court will order the parties to file and serve evidence in support of their positions.

It is difficult to challenge a Will based on lack of testamentary capacity or undue influence and if you are not successful you may be ordered to pay the estate’s costs.

More Information
Unless a Court otherwise permits, Claims contesting wills must be commenced within specified time periods. Tanya Segelov discusses the time periods involved in contesting a will.
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