Challenging a Will

Introduction – Who is entitled to Challenge a Will?

Not everyone is entitled to challenge the validity of a Will. Before you can commence such a challenge you must have an “Interest” in the deceased estate. That means you must have either an entitlement in a previous Will or an entitlement on Intestacy (if there is no Will) and you are entitled to a share of the deceased estate by way of your State Legislation.

The most common reasons for challenging the validity of a Will is because of alleged fraud, lack of capacity on behalf of the will maker, undue influence, forgery or lack of the will maker having knowledge and approval of what is contained in the Will.

However if you don’t have an entitlement as referred to in the first paragraph above you are not entitled to make a challenge.

1) Challenging a will and the rules of evidence. What is the “Jones v Dunkel rule”?

An evidentiary rule at common law by which an inference may be drawn against a party by reason of the failure of that other party to lead evidence, tender a document or other item of real evidence, or call a witness, in circumstances where it would have been expected that the party would have done any of those things in the proceedings: Jones v Dunkel (1959) 101 CLR 298. The inference is that the witness or evidence would not have been before the court. The inference should not be drawn where there is a reasonable explanation for the failure to take such action: Butterworths Concise Legal Australian Dictionary (2nd ed, 1998) p.248.

2) Challenging a will and costs. What is a “Sanderson order”?

An order of a court that the costs of a successful party should be paid directly by an unsuccessful party: Sanderson v Blyth Theatre Co [1903] 2 KB 533.

3) Challenging a will and costs. What is a “Bullock order”?

A court order against an unsuccessful defendant to pay the costs of the successful defendant where the plaintiff had joined two defendants because of doubt as to which was liable: Bullock v London General Omnibus Co [1907] 1 KB 264.

4) Can I challenge a will on the grounds a will was forged or a fraud was perpetrated?

Yes, however the onus of proving fraud lies with the person who alleges it. You need to convince a judge with your evidence. To some extent you need to produce evidence just like you would with a claim for any wrong doing. The onus is on you to prove your case with evidence. A Judge said in one case:

“Fraud, sufficient to result in the invalidation of a testamentary instrument, is concerned with misleading or deceptive conduct. With fraud, there is no overpowering of the volition, no coercion. Whereas undue influence coerces a testatrix, fraud misleads her. Willfully false statements, or the suppression of material facts, intended, either, to gain for oneself benefits under a will, or to prevent benefits being received by a natural object of the testator’s bounty.”

In another case the Judge distinguished between undue influence and fraud. He observed that there had been a plea of undue influence in the case but no clear plea of fraud. He also said “If you intend to charge the plaintiff with having obtained the execution of this will by instilling into the mind of the deceased false and delusive notions respecting the conduct of the defendant, this is tantamount to a charge of fraud, and you should have placed on the record a plea charging her with having obtained it by fraud…”

Therefore, in order to succeed with an allegation of fraud, it must be firmly established that the fraudulent conduct had a direct effect on the making of the will and, that the fraudulent conduct was perpetrated by the beneficiary for the sole purpose of receiving a benefit under the will. If issues involving both fraud and undue influence arise on the facts then each ground for contesting the will must be pleaded separately and properly.

5) Can you give me a case to read on challenging a will on the grounds of undue influence?

Yes. Read the case of Wingrove v Wingrove (1885) 11 PD 81 at 82-3. This is one of many things the Judge said in that case:

“To be undue influence in the eyes of the law there must be – to sum it up in a word – coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced in to doing that which he or she does not desire to do that it is undue influence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion, though not actual violence. These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such condition, that if he could speak his wishes to the last, he would say ‘this is not my wish, but I must do it’. There remains another general observation that I must make and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.

The onus is on the person alleging undue influence to prove it. It is not sufficient to establish pressure or importuning conduct bearing on the deceased. What is needed for a claim of undue influence to be successful is evidence that the conduct of the person or persons alleged to be exerting pressure was such that it amounted to coercion so that it overbore the free will of the testator…”

6) Can you claim undue influence to challenge the validity of a will?

If it could be established to the court’s satisfaction that a will was made under undue influence, a court may declare the will to be invalid and cannot therefore be admitted to probate. The onus of establishing or proving undue influence rests with the person(s) who asserted it. There has been no successful claim for over 100 years and it is almost impossible to prove to the court’s satisfaction.

Undue influence or duress may be in the form of a threat or have been in psychological or physical form. Evidence is required of coercion not just persuasion.

7) What type of grants of probate are available?

There are two types. Firstly, in non-contentious cases this is called common form. Secondly, in contentious cases this is called solemn form.

When in common form, any person with standing can apply for probate to be revoked however, many conditions apply.

A revocation of a grant of probate in solemn form is much more difficult because the court has already considered the evidence when the application for probate was made.

8) Who is permitted to challenge the granting of probate?

You can challenge probate being granted either before or after a grant. However, it is sometimes more difficult to challenge a grant of probate after a grant for several reasons, one of which is the executor may have already commenced to administer the estate.

The following people can challenge the granting of probate:

  • If you are a beneficiary in the current will;
  • If you were a beneficiary in an earlier will;
  • If you would be entitled to benefit if there was no will.

9) Who is permitted to challenge the validity of a will?

A person has standing (the right) to contest the validity of a will if:

  • You are a beneficiary in the current will;
  • You were a beneficiary in an earlier will;
  • You would be entitled to benefit if there was no will.

10) Can you refer me to a case about legal fees and challenging a will?

Yes. A case called Shorter v Hodges (1988) 14 NSWLR 698 at 709 which sets out some “rules” as follows:

  • 1. Where the will maker (testator or testatrix ) has been the cause of the litigation, the costs may be ordered to be paid out of the estate; or
  • 2. If the investigation into the will at probate was instigated for good cause but ultimately proved false, no costs order will be given and the plaintiff and defendant will be responsible for their own costs.

11) Who pays the legal fees in cases about challenging a will … lack of mental (testamentary) capacity?

Generally the costs follow the result. A successful plaintiff or defendant may be entitled to an order for costs. The losing party may be ordered to pay the winning party for reasonable costs incurred. These may not always cover the full amount of legal costs incurred by the plaintiff or defendant and sometimes there is an argument about this. In that event, the costs can be assessed by a court appointed assessor.

12) What if the will maker lacked mental capacity (testamentary capacity)?

A will is invalid if the will maker (testator or testatrix) is found to be lacking capacity at the time the will is executed.

The test for capacity is set out in a very old case called Banks v Goodfellow (1870) 5Qb 549 at 565. As follows;

In brief, four things must be satisfied at the time the testator/testatrix executes the will. He or she must:

  • 1. Understand he or she is executing a Will and what that means;
  • 2. Remember and understand generally the nature and extent of his or her property;
  • 3. Comprehend and appreciate any moral obligation/s he or she might have towards friends and family; and
  • 4. Be of sound mind – not affected by any disorder of mind to the extent that the will produced is one that he or she would not have made if of sound mind.

It should be noted, it is possible for a person who, for example, has Alzheimer’s disease or dementia to execute a valid will during lucid intervals provided they satisfy the above four part test at that time.

The onus initially is on the person trying to prove the will, by showing:

  • 1. The will was duly executed in accordance with the Act; and
  • 2. There are no suspicious circumstances.

Once this is proven, the onus then switches to the party seeking to disprove the will by showing the will maker (testator or testatrix) lacked the requisite intention to create a will when executing it.

13) How many grounds are there for challenging wills and what are they?

There are seven basic “grounds” for challenging wills or contesting a will. Some are available before a grant of probate or administration and others after a grant. They are:

  • 1. Family Provision;
  • 2. Fraud;
  • 3. Trusts;
  • 4. Contracts;
  • 5. Lack of Testamentary (mental) Capacity;
  • 6. Undue Influence; and
  • 7. Forgery.
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