The idea of challenging a Will can be an agonising decision for family members at a very difficult time. But if a Will turns out not to be as expected, then it may be possible to challenge it.
Does the will reflect the true intentions of the deceased? If family members believe it doesn’t, then the following grounds could be considered as cause to challenge it.
- Technical Validity
Does the Will stand up as technically (ie, legally) correct? Has it been revoked or superseded by another version, for example? Do other Wills exist?
- Mental capacity
Was the testator capable of making the will at the time he or she did so? He or she must be of sound mind, memory and understanding when the will is made and have known of and approved of the contents of the will.
The court has the power to rectify a mistake in a Will in order to make the Will read as intended.
- Undue influence
A Will can be set aside if undue influence can be proved.
Fraud or forgery would affect the validity of a Will but the standard of proof required is high.
Beneficiaries need to recognise the consequences of revocation of a Will. If a Will is revoked, the previous valid Will takes effect, or if there is none then the rules of intestacy will come into play.
In cases where there is suspicion or doubt about the circumstances in which a Will was made then evidence needs to be gathered quickly. Medical records may be sought, for example.
First published in the Pitmans Times 2012