Challenging a Will – Lack of Capacity

A will may be challenged if the will maker did not have the capacity to understand what they were doing when they signed the will, or if they were unduly influenced by someone else.

This is known as a solemn form application where the validity of the will must be proved.

Who may apply

A beneficiary of a prior will of the will maker and anyone else with a sufficient interest in the estate such as a spouse or child of the will maker may apply.

An executor may also apply if he or she is uncertain as to whether a will is valid, or if there are two wills and the executor is unsure which will is valid.

Time limits

There are no specific time limits to challenge a will for lack of capacity.  However, it may be more difficult, if not impossible, to proceed if the estate has been partially or fully administered.

The process

An applicant may first lodge a caveat in the Supreme Court to prevent the executor from obtaining a grant of probate.  If the executor wishes to prove the will, they may seek to set aside the caveat and may be required to prove the will in solemn form.

If probate has already been granted, an applicant may apply for the executor to deposit the grant of probate in the registry and to then prove the will in solemn form.

The court will then examine all the surrounding circumstances of the execution of the will.

Lack of capacity

A will maker must be able to understand:

  • the legal effect of a will;
  • the extent of their assets; and
  • the claims that others may have on their estate.

If a person made a will but did not understand these concepts, then the will may be found by the court to be invalid.

Some of the matters that the court may consider are:

  • the timeframe between the date of making the will and the date of death;
  • the cause of death (especially if dementia is noted on the death certificate);
  • clinical notes obtained from the GP or hospital;
  • if the will was prepared by a solicitor, the contents of their file and the solicitor’s observations of the will maker when the will was made;
  • witness statements of observations of the will maker at or around the time the will was made;
  • geriatrician, medical specialist and/or social worker reports; and
  • the will maker’s notes and telephone records. 

Suspicious circumstances

A will may be set aside by the court if there were suspicious circumstances surrounding its preparation or execution, or if there is insufficient evidence that the will maker knew of and approved the contents of the will.

Some of the matters that the court may consider are:

  • if a person other than the will maker gave the instructions for the Will;
  • if a person who prepared or organised the will took a significant benefit under the will;
  • if the will maker did not read English and there is no evidence that the will was translated;
  • if the will is complex and there is no evidence that it was properly explained;
  • if a will maker omitted a beneficiary from the will without explanation who would reasonably have expected to receive something; and
  • if the will maker suffered from another medical condition that may have impacted their decision making.

Undue influence

A will may be set aside by the court if the will maker did not enter into it freely and voluntarily because of coercion by another person.

Some of the matters the court may consider are:

  • if a person other than the will maker gave the instructions for the Will;
  • clinical notes obtained from the GP or hospital;
  • the degree of illness, frailty or vulnerability of the will maker;
  • if the witnesses to the will were known to the will maker;
  • if the will deals with assets in a way that is unexpected or not easily explained;
  • if there was a relationship marked by violence, bullying or manipulative conduct;
  • geriatrician, medical specialist and/or social worker reports;

Undue influence can be difficult, although not impossible, to prove.

Costs

Costs will normally come out of the estate unless a person is found to be acting without bona fides.  If an applicant is unsuccessful, it does not necessarily follow that they will have to pay costs, provided their challenge was not unreasonable to pursue.

Next steps

If you have concerns about the circumstances surrounding the execution of a will, you should act quickly.  Our team at DBL Solicitors would be happy to help.

Ben Trost
Senior Litigation Solicitor

CONTACT US TO DISCUSS YOUR CIRCUMSTANCES

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