You may be able to challenge the validity of a Will if you believe:

  • The deceased lacked mental capacity at the time they made their Will;
  • The deceased was unduly influenced in the making of their Will;
  • There was fraud involved; or
  • The Will was forged.

Lack of Mental Capacity
To write a valid Will, a person must be 18 years or older, be of sound mind, and capable of understanding the ramifications of what they are doing. They must understand the nature and value of their property, who they are expected to give provision for, who the beneficiaries of the Will are, and the effect of any disposition of property. They need to know and approve the contents of the Will.

If a Will maker lacked the necessary mental capacity the will may be invalid.

If you think your loved one wrote a will without the capacity to do so, you have to prove that the Will maker suffered from some medical condition, resulting in reduced mental capacity, or that they were under the influence of drugs, alcohol or any other substance capable of altering a person’s mental state as the time of executing their Will.

However, the presence of a mental illness or disease of the mind does not automatically mean that a Will maker lacks the requisite mental capacity. Assessing capacity requires medical records and testimony of those who observed the Will maker at the time of making their Will.

Undue Influence
Undue Influence refers to an individual using their relationship of trust with the Will maker to influence how they write their Will.

In such cases, the alleged influencer will need to show that they did not use any form of pressure, threat, force, intimidation or fear to coerce the Will maker into creating a Will which was to their benefit. A court will not invalidate a Will simply because an individual has acquired benefit through the use of flattery or persuasion. The Will maker needs to have been influenced to such an extent that the resulting Will is not a reflection of their true intentions.

Fraud occurs when a Will maker is tricked into signing a Will. It can include a Will maker being induced into signing a document he or she believes to be something other than a Will, or a Will maker being persuaded to believe in the existence of certain facts which lead him or her to make a Will which is different from what he or she may have intended.

Forged wills
Forgery differs from other situations because in most cases the deceased was not involved in the creation of the Will at all. Forgery occurs when the deceased’s Will was written or signed by a person other than the deceased. Either of these situations (Fraud & Forgery) may invalidate a Will.

If you think a Will has been written by another person, evidence will be needed to be produced to prove this, such as locating an earlier or draft Will or finding a reliable witness. Often these situations also require a handwriting expert to detect discrepancies in the signature.

If a challenge is successful the court will set aside the Will
This means that it will be treated as if it never existed. The deceased’s estate will be distributed in accordance with their previous valid Will, or if there is no previous Will, in accordance with the Intestacy Laws contained in the Succession Act 2006 (NSW).

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