It is extremely common for people to think about their estate and their will as the end of their life approaches. Dementia, old age, fighting children, or a new spouse are circumstances that can often lead to a will created close to a person’s death and in circumstances where capacity to do so is unclear.

If a will is executed in these circumstances, it is also common for someone to dispute the validity of that will. These claims against wills commonly come in two forms: a testamentary capacity claim or an undue influence claim.

Testamentary Capacity Claims

The first type of Will dispute occurs when a person claims that a testator (the person who’s will it is) lacked the legal capacity to make a will. The Court applies the Banks and Goodfellow test to determine whether a person had the capacity to undertake a will. A testator will be found to have the requisite legal capacity if:

1. The testator can understand the nature of the Will and its effects;

2. The testator can understand the extent of the property of which they are disposing;

3. The testator can understand the claims to which they ought to give effect; i.e. they must understand why they are excluding a person from their Will if they choose to do so;

4. The testator does not have a disorder of the mind preventing the exercise of their natural judgment of what is right and fair, the presence of which results in a different choice being made should they not have been affected by such a disorder.

Interestingly, the fact that someone has dementia, delusions or schizophrenia does not automatically mean they lack capacity to make a will. The impact medical conditions have on the mind and a person’s ability to reason has been the subject of a great deal of legal analysis and cases have shown that even if a person suffers from psychotic delusions or certain cognitive deficits, they may still be able to have legal capacity in moments of lucidity if the disorder of the mind is transient or compartmentalised.

Claims of this nature usually start with the filing of a caveat preventing probate from being granted, followed by an application in the Supreme Court either seeking the “invalid” will be admitted to probate, or an application seeking a previous will be admitted to probate, or a grant of Letters of Administration be issued in the event there is no other will.

These claims usually involve the gathering of witnesses and evidence such a medical notes, videos and lawyer’s notes, and anything that would support a finding that a person either had, or did not have capacity. This process can be long and extremely costly should hospitals or doctors need to be subpoenaed, or experts retained to provide opinions as to those notes.

Undue Influence Claim

The second dispute occurs when a person claims that a beneficiary exerted undue influence on the testator when they created that Will. Cases such as these are not often successful as there is a high threshold to prove undue influence as required at law.

It has been held that legitimate influence, persuasion and even pressure on a testator to change their Will is not undue influence unless it deprives a person of their free will. Further, the party claiming undue influence must provide proof of the same and evidence of an opportunity for the alleged undue influence to occur is not enough to prove a claim.

Often times, these undue influence claims have significant overlap with an incapacity claim and are ultimately pursued as an incapacity claim, as the evidentiary threshold is simply too great of a hurdle to overcome.