The validity of a will may be contested on the grounds that it was made as a result of ‘undue influence’ being exercised over the deceased person by one or more other persons, or on the basis that there are suspicious circumstances surrounding the making of the will.
In order to prove that a will has been made as a result of undue influence, it must be shown that the deceased person was made to sign a will of which he or she did not approve.
The court must be satisfied that when signing the will, the deceased person would have said, had he or she been asked whether the will reflected their real wishes, ‘This document does not represent my wishes, but I have no choice but to sign it’.
The degree of influence required to constitute undue influence depends on the circumstances of each case.
In its grossest form, undue influence may involve actual violence towards, or physical confinement of, the deceased person.
However, undue influence may also take more subtle forms. For example, in the case of a very sick person in the last days or hours of life, he or she may be so weak and feeble that even a very small amount of pressure would be sufficient to constitute coercion. It might even be that simply talking to the person and pressing some particular point of view upon them might so fatigue the brain that he or she will sign anything in order to be left in peace.
An allegation of undue influence in relation to the making of a will is a very serious allegation to make. The seriousness of such an allegation is reflected in the caution with which the courts approach such cases. There are numerous judicial pronouncements to the effect that an allegation of undue influence should only be made where there is strong evidence to support it.
An allegation of undue influence is also very difficult to prove. This is because undue influence, by its nature, generally happens in private. A court will not make a finding of undue influence by inferring it. Accordingly, the fact that one or more people have suspicions or doubts about the circumstances surrounding the making of a will is not sufficient to prove undue influence.
It is important to note that burden of proving that a will is invalid on the ground of undue influence lies on the person making the allegation.
A person who makes an allegation of undue influence unsuccessfully runs the risk of being ordered to pay the legal costs of the person against whom the allegation was made.
Suspicious circumstances surrounding the execution of a will
A separate basis upon which a will might be challenged is on the basis that there are suspicious circumstances surrounding the making of the will.
Suspicious circumstances can include:
- An unexplained change of testamentary direction, in the sense that the will leaves out beneficiaries named in previous wills;
- The absence of any estrangement of the deceased person from a person who has been disinherited;
- Control of the deceased person by a favoured beneficiary;
- Preparation of, or provision of instructions for, the purported will by a favoured beneficiary or by persons known to the beneficiary, rather than the deceased person;
- Conduct of a favoured beneficiary toward a person who has been disinherited after the execution of the purported will.
The suspicious circumstances must relate to the making of the purported will – it is not sufficient that they arise later.
Where there are suspicious circumstances which surround the execution of the purported will, those circumstances must be explained and the court must be satisfied that the purported will is the product of the mind of a free and capable will-maker.
The onus of dispelling suspicion surrounding the execution of a purported will lies on the person seeking to have the will admitted to probate.
For assistance regarding a dispute about undue influence or suspicious circumstances in relation to a will, please contact our office on 07 3009 8444.