If a loved one’s will seems confusing or suspicious, the court can help in determining its validity. There are 4 main reasons why a will could be legally challenged as being invalid.
- The will maker did not have mental capacity.
- The will maker was unduly influenced.
- There are suspicious circumstances.
- There was fraud.
1. Mental capacity
Mental capacity does not mean that the testator (will maker) should be fair or reasonable. In fact, the will maker can be vengeful, ridiculous or nasty when writing their will. Mental capacity when we consider the will maker’s ‘capacity’ or understanding of the nature of writing a will. In succession laws, mental capacity is for the testator to have ‘sound mind, memory and understanding’ upon making and executing their will.
To have mental capacity, the testator is required to pass each of the 4 tests;
- Understand the serious nature of the act of making a will and the outcome.
- Understand the general extend of the property being covered in the will.
- Have considered the likely claims from family and friends, although they are not compelled to act on this expectation.
- Have no insane delusions.
In the court of probate, the person challenging a will bears the onus of proof. If the challenger can determine beyond a reasonable doubt that any of the 4 above requirements have not been met then all or part of the will may be deemed invalid.
2. Undue influence
Undue influence means coercion or force. It occurs when an amount of pressure has been placed on the testator so as to remove their free will. This can occur deliberately or inadvertently and from anyone from family to friends or even the family solicitor. If undue influence has been claimed, the burden of proof to substantiate the claim lies with the person making the claim.
3. Suspicious circumstances
The classic example of suspicious circumstances is a beneficiary helping someone prepare their will in favour of themselves. The court places a heavy burden of proof on the beneficiary to help alleviate any suspicion. It is common practice for a beneficiary to encourage the will maker to seek independent advice, or if the lawyer is a beneficiary, to have the will written by a different lawyer.
The court is also mindful of people who may be feeble, blind, illiterate or depended on others to help understand what they are doing when preparing a will.
4. Fraud
The party challenging fraud needs to prove that the testator was deliberately misled and changed their will as a result of the fraudulent assertion. Fraud can also be claimed if the will is fake.
WHERE THE COURT UPHOLDS A CHALLENGE
If the court finds that either the will maker did not have mental capacity to make a will, or if they were unduly influenced there are two likely outcomes;
- The entire will is deemed invalid, or
- The section of the will which is compromised is deemed invalid and the remainder of the will is admitted.
1. The entire will is invalid
If the entire will is invalid the previous version of the will may stand. This is most likely to occur when the new, invalid will contains a standard revocation clause. The revocation clause will not be valid as it would be as if the new will never existed. Solicitors usually hold onto prior wills.
If the deceased did not have an earlier will then it would be as if they died intestate, that is, to have died without a will. The state or territory legislation ensures the entire estate is passed on to the closest next of kin; first a spouse, then children, then parents and so on.
2. Parts of the will are invalid
If part of the will is deemed invalid due to capacity, undue influence or suspicious circumstances then the impacted clauses are removed from the will. The remainder of the will is read in entirety.