"
skip to Main Content

02 4050 0330

    • Medical Negligence
    • Women’s Health
          • Women’s Health

            We know that there is disparity in women’s health care, treatment, and support. We are committed to improving the lives of women and strongly advocating for their wellbeing.  That is why we take a stand and hold medical professionals accountable when medical care falls short of expected standards by delivering the best outcome in medical negligence claims affecting women.

            Read More

    • Hospital Negligence
          • Hospital Negligence

            We understand you may feel let down because you have experienced inadequate or negligent care and treatment in a hospital or medical facility. Your wellbeing is most important to us and we are committed to supporting you with compassion and holding medical professionals accountable for breach of duty and negligent care.

            Read More

    • Clinical Support
          • Clinical Support

            Experiencing poor or adverse outcomes from allied health treatment can be distressing and life changing. We are here to support you through your claim and it is our aim to hold allied health professionals accountable for their breach of care by delivering the outcome you deserve to your negligence claims.

            Read More

    • I need help
          • Not Sure where to start?

            Hello, I’m Jade. I’m here to help you with a quick call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Personal Injury
          • Personal Injury

            If you have been injured because of someone else’s negligence, our specialist team of Personal Injury Lawyers is here to support you with compassion and understanding providing you with the right advice. Our team has substantial experience and expertise in these matters to deliver the outcomes you deserve from your claim.

            Read More

    • Work Injury
    • Motor Vehicle Accidents
          • Motor Vehicle Accidents

            We are here to support you and give you the clarity, guidance and the right legal advice if you have been injured in a motor vehicle accident. Our compassionate team of professionals in Personal Injury law have the technical expertise and a wealth of experience to win you the compensation you deserve.

            Read More

    • Public Liability
          • Public Liability

            Our specialist team in Personal Injury law is here to support you in accessing proper compensation if you have been injured because of someone else’s negligence. We have cutting edge expertise and experience in public liability claims to deliver the outcome you deserve.

            Read More

    • Abuse
          • Institutional Abuse

            We strongly believe that educational institutions must be held accountable when failing to protect children while in their care. If you have experienced institutional physical or sexual abuse, our specialist team in Personal Injury law is here to support you with compassion and offer our technical expertise and experience to deliver the best outcome in your case.

            Read More

    • Workers Compensation
          • Workers Compensation

            When you sustain an injury or illness because of work, you may be entitled to  compensation. Our specialist team in Personal Injury Law is here to support you with compassion and understanding with the right advice. We have substantial technical expertise to deliver the best possible outcome from your claim.

            Read More

    • School Negligence
    • I Need Help
          • Not Sure where to start?

            Hello, I’m Jade. I’m here to help you with a quick call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Wills & Estate Planning
          • Wills and Estates

            When we provide advice on estate planning, we believe  in giving advice on options to mitigate the risks of litigation by potentially unhappy family members and protecting your assets from claims. Our legal team is here to support you and address your concerns regarding your estate planning. We have immense experience in these matters, providing you with advice and representation for your unique situation and delivering the best outcomes for your case.

            Read More

    • Powers of Attorney
    • Contest A Will
          • Contest A Will

            We have immense experience and specialised knowledge in family provision and wills disputes Where you have not been properly and adequately provided for under a will or where you suspect that the person making the will may not have had capacity or exercised their own free will, you need a lawyer with extensive experience and expertise. Our team of Lawyers will  provide you with advice and representation for your unique situation and deliver the best outcomes for your case.

            Read More

    • Probate & Deceased Estates
    • Enduring Guardian
    • Family Provision
    • I Need Help
          • Not Sure where to start?

            Hello, I’m Jade. I’m here to help you with a quick call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • Other Services Overview
          • Conrad Curry Can assist you with a variety of services

            Our solicitors are highly experienced in providing you with expert legal advice and will keep you informed every step of the way. It’s good to know that our firm is trusted and effective with a high success rate.

            Read More

    • Professional Negligence
          • Professional Negligence

            We rely on professionals in all aspects of our lives to provide us with proper advice on which to make decisions about our financial and legal affairs. When you are let down by poor advice the results can be devastating.  We are here to support you in your claim for compensation with clarity, guidance and the right advice to achieve the outcome you deserve.

            Read More

    • Malicious Prosecution
          • Malicious Prosecution

            We believe in standing up for those people who are falsely accused and prosecuted. Our experienced legal team is here to support you with compassion and provide you with clarity, guidance, and the right advice in your claim for compensation.

            Read More

    • General Litigation
    • I Need Help
          • Not Sure where to start?

            Hello, I’m Jade. I’m here to help you with a quick call that will help us better understand your legal concerns. This way, I can connect you with the lawyer who is best suited to assist you with your situation.

            Your well-being is important to us, and we’re here to support you every step of the way.

            Call me on 02 4050 0330 or email admin@conradcurrylaw.com.au

    • What to Expect
          • What to expect

            We are your law firm for life. You can count on us for the best legal advice and compassionate support. We understand the challenges you are facing and we want you to know that you don’t have to navigate the often daunting process alone. We are here when you need us. Let us help you find your way forward with our empathetic and efficient approach. Contact us. You can call us on (02) 4050 0330 for a free initial no-obligation consultation or book an appointment online for an in-person consultation or an online video appointment.

  • No Win/No Fee Options

Essential Validity & Undue Influence

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.

Click here to learn more about our services or call our friendly team on 1300 808 933 to book an appointment.

Recent Articles

Stay Updated With Legal News
Subscribe To Our Newsletter

This field is for validation purposes and should be left unchanged.