As a society, we regrettably witness an increase in the abuse of power over those more vulnerable in society, such as the elderly or people with disability. Unfortunately, that includes the abuse of family relationships and those in control of another person’s financial and personal affairs. In the following blog, we look at the abuse of control in the area of estate planning – undue influence in Will making.
A Will may be challenged on the basis of essential validity. This legal concept is concerned with the mental elements going to the making of a will, that is whether the Will is the last Will of a free and capable testator. Validity is established if on all of the available evidence the Court is satisfied that the testator (will-maker): intended to make the Will; had the capacity to make the Will; knew and approved the contents of the Will and was not induced by fraud or undue influence to make the will.
In order to challenge an application for probate of a Will it is necessary to have an interest in the estate. It is necessary to show that the person challenging the Will was either a beneficiary under the immediately preceding Will or if there was no Will that they would have been entitled as a beneficiary on intestacy as the next of kin.
In order for probate to be granted in relation to a Will, it will be necessary for the applicant to prove that the Will is the last Will of a free and capable testator. Firstly, it must be shown that the Will is rational on its face and that it is duly signed and witnessed. Two presumptions arise:
* A presumption of validity; and
* A presumption that the Will maker knew and approved the Will ie that the contents of the Will expressed their free mind.
The person challenging the Will is required to adduce evidence which raises doubt or suspicion as to the Will maker’s capacity to make the Will or that he/she had acted freely and of his/her own volition.
When looking at whether suspicion is excited, the Court will look to a number of factors:
* The circumstances surrounding the preparation of the Will;
* Whether a beneficiary was instrumental in the preparation of the Will;
* Whether the Will constitutes a significant change from a previous Will or whether in all the circumstances the Will makes sense; and
* The Will maker’s state of mind and mental well-being at the time
With respect to undue influence, the Court must be satisfied that the Will maker’s free will was overborne when he/she made the Will, such that he/she was not acting of his/her own volition. The standard of proof is as set out in Brown v Guss [2014] VSC at 393:
“The party alleging undue influence must show that the circumstances attending the execution of the Will are consistent with the will having been obtained other than by undue influence. The standard to which they must show the circumstances are so is on the balance of probabilities….The must … show that on balance, the hypothesis that the testator has been unduly influenced must be more likely than the contrary.”
Proof may require the person challenging the Will to obtain witness statements (known as affidavits) in which evidence is given as to matters of the vulnerability of the Will maker and the relationship with the person alleged to have unduly influenced the Will maker. It may also be necessary to obtain expert evidence as to medical condition and cognition at the time of making the Will.
Interested parties are advised to file a Caveat with the Supreme Court of New South Wales if they believe that a Will may have been made in circumstances of undue influence. Once filed it will be necessary for the person wishing to put the Will forward as the last valid Will to file a statement of claim commencing proceedings and naming the interested person as the defendant. Probate will not be granted thereafter unless consented to or ordered by the Court.
Challenging a Will on the basis of Undue Influence is a complicated and complex area of law. Because there is essentially an allegation of fraud, care must be taken when making the allegation. If you wish to challenge the validity of a Will, it is important to engage a Lawyer with significant experience in the area.
