Challenging the Will

In certain circumstances, a person may challenge the validity of a Will.  This might be due to the deceased lacking testamentary capacity at the time the Will was signed or an allegation that the deceased was unduly influenced to sign a Will which they would not otherwise have signed.   

In other situations, the Will may not meet the requirements of the Succession Act 1981 (Qld) as it was not written on paper or witnessed appropriately, has become lost or torn.  In such situations, it is the law which challenges the validity of the Will and proof of its validity must be established by the person claiming to be the executor of the Will. 

Testamentary Capacity 

To sign a valid Will, the deceased must have had testamentary capacity when providing instructions and signing the Will.  Testamentary capacity is a legally defined term.  Ultimately, it requires the deceased to: 

  1. have understood he/she was making a Will and its effect; 
  2. have understood the assets and liabilities of his potential estate; and 
  3. have understood and appreciated the claims people may have upon his/her estate. 

Certain diseases may raise a suspicion of lack of testamentary capacity.  Such diseases include: 

  • AIDS 
  • Advanced multiple sclerosis 
  • Alcohol related dementia (Korakoff’s psychosis) 
  • Alzheimer’s dementia 
  • Brain cancer 
  • Cerebral atherosclerosis 
  • Creutzfeldt-Jakob disease 
  • Dementia 
  • Demyelinating disease of central nervous system 
  • Frontal lobe dementia 
  • Huntington’s chorea 
  • Multi-infarct dementia 
  • Neurosyphilis 

To overcome a suspicion of lack of testamentary capacity due to disease, medical evidence of capacity at the time the Will was signed must be produced to the court. 

If you are concerned that the deceased lacked testamentary capacity at the time the Will was signed, please contact us for a consultation. 

Undue Influence/Unconscionable Conduct/Fraud/Insane Delusions 

There are several situations in which a Will can be challenged due to the existence of suspicious circumstances.  Suspicious circumstances can include undue influence or fraud.  Insane delusions can also give rise to a challenge of the Will. 

The concern of the Court is whether the influence, conduct or delusion was sufficient to override the freedom of the deceased to dispose of his/her estate in a manner they would have done if the suspicious circumstances did not exist.   

Undue influence involves the will of the deceased having been overborne by coercion.  Trust and confidence in a person does not amount to undue influence.  Evidence must be produced which proves the person in question had the power to coerce the deceased and used that power to produce the desired Will.   

Fraud can be argued when a person has deceived.  For example, a person may claim to have been a long-lost relative in order for a gift to be included in the Will.  Another example arises when a person falsely makes representations concerning the character or conduct of another person in order to have their bequest reduced or removed entirely.  

If you are concerned that the deceased signed his/her Will in suspicious circumstances, we recommend you contact our legal team for advice. 

 

Non-compliant Will (no witness, torn pages, alterations) 

The validity of a Will may be challenged if it fails to meet legal requirements.  At present, the legal requirement for a valid Will in Queensland is that it is in writing and signed by the testator in the presence of two witnesses. 

Examples of when a Will is considered non-compliant include: 

  1. when the original Will has been lost and only a photocopy can be found; 
  2. when the original Will is damaged due to tearing or holes; 
  3. when the Will has been written using different coloured pens; 
  4. no witnesses or only a single witness to the Will; or 
  5. the Will has been written on a computer, saved as an unsent text message or recorded on a video. 

In each of the above examples, an application must be filed in the Supreme Court of Queensland to have the Will declared valid.  The assistance of a barrister is often required and a successful outcome is not always guaranteed.   

If you are concerned that the deceased did not leave a valid Will, we recommend you contact our estate litigation solicitor at our Gold Coast office for advice. 

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