Probate – How to Contest a Will Due to Undue Influence
Families usually go through a difficult time when a loved one passes away, but things can be even more difficult when disputes arise regarding the validity of the will left by the deceased. This often leads to costly court cases to determine the validity of a will. When this happens, you should look for the most competent lawyer who charges a contingency fee to ensure that you’ll not pay anything if the lawyer does not win the case.
We usually come across families that have recently lost a loved one and vulnerable family members who have been forced to change their will for one reason or another before passing away.
There are usually several key factors that are often taken into consideration when investigating suspicious circumstances to ascertain the validity of a will.
Fortunately, there are laws that allow interested parties to contest or dispute a will, and they can be divided into three main categories:
- Absence of testamentary capacity
- Undue influence and fraud
- Suspicious circumstances, knowledge and approval of contents of will
Absence of Testamentary Capacity
To be successful in disputing a will on this ground, you have to prove that the testator did not have the mental capacity to create a new will.
If you would like to prove to the court that the will maker did not lack the testamentary capacity to create the new will, you have to demonstrate that there is no disorder of the mind. The court will be looking for evidence showing that the will maker understood;
The law that dictates how wills are made.
The value of each individual asset they possessed at the date of creating the new will.
What the consequences of making the new will are.
When legal professionals are hired to help clients make a will, they have a duty to respect every single instruction given to them by the testator with the help of family members and doctors. It’s important to note, however, that it is ultimately up to the court to decide whether or not mental capacity existed when the will was being drafted.
Even if it’s proven that the will-maker had the mental capacity to make a new will, there is still the issue of proving that the testator had testamentary intentions when making the will.
When planning to challenge a will, a lawyer must check whether or not the will-maker knowingly approved the contents of the will. The following are some common red flags to watch out for:
Unexplained change of directions, such as leaving out children completely or reducing their share of the estate significantly when previous wills gave kids an equal share consistently.
One crucial member of the family is left out. For example, if the testator has only one child, but they are suddenly left out of the will without any clear explanation.
When the testator has made a will under the control or influence of a favoured beneficiary. For instance, if a child who lives with an elderly parent is left with a larger portion of the estate than other children.
When the will was created by persons known to one or more of the beneficiaries rather than the testator. For instance, the solicitor of one of the beneficiaries may prepare a will for the parent.
Suspicious behaviour of the beneficiaries of the estate towards other beneficiaries when the will is executed. For instance, if a beneficiary tries to hide the existence of the will.
Unfortunately, undue influence and fraud can become a huge factor when looking at the validity of a will. Essentially, the court will be looking for evidence proving that the testator was coerced to make a will that does not reflect their true wishes.
Forging of signatures, pretending to be the testator and threats of physical harm and bullying are all fraudulent behaviours that can lead to the nullification of a will. In many scenarios, however, proving undue influence can be incredibly challenging. It is not usually straight forward – we have previously dealt with many family dynamics and tricky scenarios, so we can easily navigate our way through to ensure you get a favourable outcome. Contact us today if you want to contest a will.
How to Contest a Will
If you want to contest a will, you first have to share some details about your situation. Ideally, this should be done in person, but it can still be done over the phone. We usually avail an experienced barrister or lawyer whom you can talk to and get solid advice from.
Unfortunately, the laws surrounding this issue are incredibly complex while the process itself can be emotionally draining. If you have been thinking about contesting a will, you have to seek legal advice as quickly as possible.
Contest A Will Time Frame
In New South Wales, a person has only one year from the day the testator passes away to file a family provision claim in court. While the time-frame can be extended, there must be a reason considered satisfactory by the court. You can never assume that the court will grant the extension automatically.
While there are 12 months to file the claim in court to dispute the will, it is always advisable to seek legal advice as soon as possible instead of waiting until the time-frame lapses. Obviously, this will be the last thing you’ll be thinking about when grieving, but it’s important for potential claimants to file the claim as soon as possible.
Please note that the distribution of the estate is usually done by the executor of the will after 12 months, so any claim must be filed before the process starts. If the estate is distributed by the executor before the claim is filed, things can be difficult for the claimant. After all, the beneficiaries might have already started spending the money and disposing of any assets they inherited. That said, it’s crucial to note that the process of probate can last anywhere from a few months to several years.