Contesting a Will

A will can be contested if it was not validly made. That is generally on the basis that the testator did not have adequate capacity, or because there was undue influence. It can also be if he or she did not know of or approve the will for some other reason.

Challenges based on seeking a family provision order (under the Succession Act), assume the will is valid, but ask the court to make provision for an “eligible person” by changing the terms of the will. For these sort of challenges, see “Challenging a will”.

Capacity to make a will

Testamentary capacity includes the ability to comprehend and to weigh the competing claims of a testator’s testamentary bounty.

A testator must also be capable of understanding the nature and extent of his estate.

Another way of putting it is to ask whether the testator is able to understand the facts involved, weigh up the consequences of those choices and understand how the consequences affect them; and communicate their decision.

The test of testamentary capacity most often used by the court is stated in Banks v Goodfellow “It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

More recently, the Supreme Court held in Kerr v Badran as follows:

“It is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. …. Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. …”

The court will accept expert evidence from doctors as to these issues. They will examine medical and hospital records, and take evidence from people who knew the testator. The onus is on the party propounding the will.

Undue influence

The Supreme Court has held that undue influence is equivalent to coercion, by actual force or threats. It is quite difficult to prove. Influence generally in the form of persuasion or moral pressure to favour a person by will, whatever its degree, is not invalidating unless it produces a will contrary to the will of the testator. There must be an overpowering of the testator’s volition.

The burden of proving undue influence is borne by those seeking to overturn the will. What must be proved is actual coercion of the mind sufficient to produce an act contrary to the will of the testator. It is insufficient to show power or opportunity to overbear the testator’s will; it must be shown that that power was exercised , and that it was by means of its exercise that the will was produced

An allegation of testamentary undue influence is a serious matter. For that reason the court requires proper and strong proof, in the assessment of the evidence which has been marshalled in support of the allegation made, and in arriving at the ultimate conclusion.Nevertheless, in an appropriate case, undue influence can be proved by indirect or circumstantial evidence.