The laws that relate to disputing or contesting a will are very complex. A will can be challenged in one of the following circumstances:
1. Lack of capacity
There is a presumption that a person making a will is of sound mind unless it can be proved otherwise. To successfully challenge a will on the basis of unsound mind, the following needs to be proved:
- That the person making the will did not understand the significance of making their will;
- That the person making the will did not understand the nature and extent of the property included in the will;
- That the person making the will did not understand who might reasonably be expected to have some claim to their estate; and
- That the person making the will could not evaluate and discriminate among those claims to their estate.
2. Undue influence
The following elements must be satisfied when challenging a will on the basis of undue influence:
- That a particular person had the capacity to influence the deceased;
- The influence was exercised;
- Its exercise was undue; and
- Its exercise brought about the transaction.
Undue influence is the most difficult fact to establish. The most crucial element of undue influence is to establish the use of coercion. To do this, the Court usually requires the witnesses to the signing of the will to give evidence regarding the methods of coercion used on the deceased.
The circumstances in which fraud can arise include the following:
- Where a beneficiary makes at least one specific false statement to the person making the will, which causes the person to make changes to the
will that benefit the beneficiary.
- Where the person makes certain misrepresentations to the person making the will about who is going to obtain benefits under the will; and
- In circumstances where forgery is involved.
To establish fraud, all of the following elements must be satisfied:
- That the person knowingly misrepresented a material fact;
- That such misrepresentation deceived the person making the will; and
- That the person making the will relied on that misrepresentation; and
- That as a result of that representation, the person received a benefit under the will.
We understand that losing a loved one is a very difficult and emotional time. Going through legal action can add to the stress but the team at
Streeterlaw Sydney lawyers will help and support you through this challenging time and achieve a fair result for you. All contested applications
need to be made within 12 months from the date of death, so it’s important you take action as soon as possible.