The Importance of a Will
A will is an important legal document that outlines a person’s final wishes for the distribution of their estate after death. In Australia, a will’s validity can be challenged under certain grounds, one of which is ‘undue influence’. This article explores the complexities involved in challenging a will on these grounds in Australia.
Understanding Undue Influence
Undue influence occurs when the testator (the person making the will) was tricked, improperly pressured or coerced into making the will. This influence must go beyond mere persuasion or advice, it involves someone exerting pressure or coercion on the testator, forcing them to make decisions that don’t reflect their true intentions. Recognising when this has occurred is crucial to ensure that a will reflects the deceased’s wishes.
Identifying Undue Influence
Identifying signs of undue influence can be challenging as it often involves subtle manipulation and tactics, and is different according to a testator’s specific circumstances. A person’s age, cultural and language background, reliance on others and family relationships can affect their level of vulnerability to undue influence. Some common signs of undue influence may include:
- Sudden and unexplained changes to a longstanding will;
- Isolation from family and friends;
- Unexplained changes to beneficiaries or the share they are to receive;
- beneficiaries being involved in making the will;
- Absence of legal and other advice;
- Contradictory statements about the testator’s intentions.
These signs are not definitive proof of a testator being unduly influenced, but can collectively raise suspicions about their true intentions. Identifying these circumstances often involves gathering witness statements, reviewing medical records, and examining other documentary evidence.
Legal Criteria for Proving Undue Influence in Australia
The burden of proof lies with the party contesting the will. To prove undue influence, the following elements generally need to be demonstrated:
- Susceptibility: The testator was vulnerable due to factors like age, illness, or cognitive decline.
- Opportunity: The alleged influencer exploited an opportunity to exert undue influence, often via a close or confidential relationship.
- Disposition: The alleged influencer was clearly motivated by a financial benefit to exert undue influence.
- Result: The will includes provisions that are unexpected or out of character, and benefit the alleged influenced to an unusual extent.
Gathering compelling evidence that prove the above elements are vital to successfully challenge a Will.
Eligibility to Challenge a Will in Australia
Under Queensland law, anyone with a connection to the deceased person’s estate, such as a potential beneficiary or disappointed family member, may apply to challenge the Will on the grounds of undue influence.
How Queensland is unique
In Queensland, deceased estates are governed by the Succession Act 1981. This Act outlines the formal requirements for valid wills, provides for family provision claims, and grants the Supreme Court power to rectify wills and authorise informal wills.
It also sets time limits for contesting wills, such as the 9-month deadline for family provision claims. The Act includes provisions for statutory wills for those without testamentary capacity.
Role of Executors in Will Challenges
Executors play a vital role when a will is challenged. Their duties include Upholding the terms of the Will, defending the estate against claims and ensuring the testator’s intentions are carried out. At the same time, executors also have a duty to verify the Will’s validity, and to apply to the Court if necessary for a declaration that the Will is genuine and effective.
They may engage legal advisers, provide relevant information to the court and interested parties, and continue managing and preserving estate assets during a challenge. Executors must inform beneficiaries of any challenges affecting their interests and may participate in mediation if required.
Their specific duties are influenced by the will’s terms and any court orders. Given the complexity of their role, executors facing a will challenge in Queensland should seek legal advice to ensure they properly fulfil their responsibilities.
Potential Outcomes and Considerations
A successful challenge may result in:
- The entire will being declared invalid;
- Certain parts of the Will being removed
- A previous will being reinstated;
If there is no previous Will, the testator is deemed as having died ‘intestate’ and legislation dictates the distribution of estate assets to certain family members.
Challenging a will can be costly and emotionally distressing. This makes it vital to find a team of professionals to help you make the right decisions for your matter, based on years of experience in estate litigation.
Preventing Undue Influence Claims
Whilst estators cannot completely prevent someone from challenging their Will, there are strategies that can minimise the risk of a successful challenge, including to:
- Engage a solicitor to draft the will;
- Obtain a medical capacity assessment if there are concerns about cognitive ability;
- Clearly document reasons for any significant changes to the will;
- Avoid beneficiaries being involved in the process.
FAQ’s
What happens to the estate while a will is being challenged?
Until the dispute is resolved, the executor must continue to manage and preserve the assets. However, the administration and distribution of estate assets may be delayed..
Can I challenge a will if I’m not a beneficiary?
It depends on your relationship to the deceased and the grounds for challenge. Seek legal advice to determine if you’re eligible.
Can a will be challenged after probate has been granted?
Yes, but it’s generally more difficult. A grant of probate is the Court’s approval of a Will, and revoking that approval is a serious matter.
Let our professionals help you!
At Greenhalgh Pickard, our team of experienced estate lawyers can guide you through the intricacies of will disputes in Queensland. We offer expert support to help you navigate this complex and often emotional process.
Greenhalgh Pickard’s Wills and Estates Team
Disclaimer:
The information contained in this article is for general informational purposes only and is not intended to provide legal advice or substitute for the advice of a professional. This information does not consider your personal circumstances and may not reflect the most current legal developments. Should you need advice, please contact our firm for targeted information relating to personal your situation.