What Constitutes Suspicious Circumstances?

Suspicious circumstances are circumstances surrounding the preparation or execution of a Will which give rise to suspicion. The suspicious circumstances can involve circumstances surrounding the preparation of the will and circumstances surrounding the execution of the Will.

A will made under suspicious circumstances may be invalid and may be challenged on that basis.

A common example of where suspicious circumstances are raised is where a beneficiary prepares a will for an elderly or vulnerable family member under which they take a benefit.

Grounds for Challenging a Will

A will may be challenged on many grounds – for instance, where a will has not been executed in accordance with the formal requirements under the Succession Act 2006 (NSW), where a will has been prepared in suspicious circumstances, where a will is the product of undue influence or worse, fraud.

It is often the case that allegations of suspicious circumstances and undue influence are made together, and often in the case of an elderly testator who had dementia or Alzhemiers disease.

Whilst most disputes can be resolved through negotiations, some require court intervention.

If you believe you have grounds to challenge a will, you should contact a specialist lawyer without delay.

Testamentary capacity and its importance

For a will to be valid, the will-maker must have testamentary capacity at the time of its creation or change. As part of this, the executor must prove that the testator knew and approved the contents of the will. Capacity is crucial to the exercise of testamentary intentions.

Capacity is determined by the court and not the family members, solicitor or treating doctors – it is a legal test and not a medical test.

Where a court finds that the testator lacked testamentary capacity to make the will at the time they made it – the will is invalid.

Undue Influence and Coercion

Undue influence may arise where a person makes a will that is the product of coercion – that is – a will that was made against the testator’s free will.

What constitutes coercion will vary with the circumstances.

Examples of coercion may arise where a person places substantial pressure on an elderly or vulnerable parent to change their will as a result of which, the person who lives with the elderly parent becomes the sole beneficiary or receives a larger share. The fact that the parent acquiesces and eventually agrees to an unexplained change of testamentary direction, does not cure the preceding undue influence.

The onus of proof rests on the person who alleges undue influence and they must prove it with admissible evidence. It is however often difficult to prove.

The Process of Challenging a Will

Understanding the Main Grounds for Challenge

The main grounds upon which to bring a claim depends on the facts and circumstances of each case.

Grounds upon which to challenge a will include – where the execution of the will does not satisfy the formal requirements, where a will was prepared by a person who lacked testamentary capacity, where a will was made in suspicious circumstances, or was the product of fraud and undue influence.

Documentation and Evidence Collection

The success of a case will depend on the strength of the evidence and the forms of evidence will depend on the circumstances. Evidence can include written evidence, physical evidence, expert evidence, records and information, and medical evidence. An experienced wills and estate lawyer is best placed to guide you through the formal requirements of gathering evidence for a claim.

Where a will is duly signed and the testator was of sound mind, memory and understanding when they made their will, a presumption arises that the will maker knew and approved the contents of their will. However, circumstances may arise which indicate the testator did not read the will, or did not intend for a particular clause to be included.

Notifying the Executor and Beneficiaries

Once a person has sought advice and is satisfied that they have grounds to challenge a will, the first step will often involve the person’s lawyer writing to the executor to put them on notice of the claim. The correspondence will usually set out the claim, the legal basis for the claim, the evidence supporting the claim and in some circumstances make or invite, a settlement offer.

Potential Resolution Options

Most will disputes can be resolved through negotiations and mediation. If negotiations and mediations don’t resolve a dispute, court proceedings may be needed.

Filing the Court Proceedings

Where negotiations and mediation do not resolve a dispute, a dispute may require court intervention.

Who is responsible for commencing the court proceedings will depend on the circumstances of the case. In some instance, it is the executor who commences the proceedings which names the person challenging the will as the defendant to those proceedings. In other cases, the person challenging the will may be responsible for commencing the court proceedings. In either case, the preparation and filing of the court documents should be left to experienced lawyers.

The Court Process

The court process will depend on what court the proceedings are commenced in, however, generally speaking the role of the court is to determine what is the deceased’s last valid will.

Costs and Timeframes

The costs of challenging a will depends on many factors, including, the parties willingness to negotiate, the timing of the resolution, the complexity of the claim and the size and nature of the estate.

Disputes that are resolved through negotiations and mediation can often be resolved within weeks or months, and at a lower cost compared to fully contested court proceedings.

Matters that proceed to a court hearing can take years to resolve and can be very costly.

What the Court Will Take Into Consideration

At a final hearing, the court will take into consideration each of the parties admissible evidence which may include the will itself, previous wills, the solicitor file notes, other records and information, evidence from family and friends, expert evidence, and medical evidence.

Potential Outcomes of Challenging a Will

If an agreement can be reached outside court, the beneficiaries can agree for the interests in the estate to be distributed in accordance with their agreement, effectively rewriting the terms of the Will.

If the matter proceeds to court, and the court is satisfied that the grounds to challenge the will have been proven, the court may refuse to grant probate for that will and instead grant probate for an earlier valid will. If there is no earlier valid will, the court may determine the testator died ‘intestate’, that is, without a valid will and grant letters of administration. The estate will then be distributed in accordance with the terms of the earlier valid will, or where there is no earlier valid will, pursuant to the rules of intestacy.

If the will challenge proves unsuccessful, and the court finds the will to be valid, the court will (subject to other claims or issues) grant probate for that will and the estate will be distributed in accordance with the terms of the will. The unsuccessful party may also be ordered to pay the legal costs of the successful parties, which may include the estate and other beneficiaires.

Get Legal Advice On Challenging a Will

If you suspect suspicious circumstances exist regarding a loved-one’s will, either through a lack of capacity or undue influence, contact Empower Wills and Estate Lawyers today on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation.

Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.

Frequently Asked Questions

1. What does it mean to Challenge the Validity of a Will?

To challenge a will means to challenge the validity of the will. This can occur for a number of reasons, including lack of capacity, undue influence, suspicious circumstances, or fraud.

2. What is Testamentary Capacity?

Testamentary capacity is a term used to describe the mental capacity and ability that a will-maker must have at the time they make their will, in order for the will to be valid.

Capacity requires the Court to be satisfied that at the time of making their will, the testator:

1. Understood the nature of the testamentary act and its effects;
2. Understood the extent of the property of which they are disposing;
3. Comprehended and appreciated the claims to which they ought to give effect; and
4. Was not suffering a disorder of the mind or insane delusion at the time.

Proof of capacity will often be determined by contemporaneous medical records, solicitor file notes, and expert medical reports.

3. What does Knowledge and Approval mean?

For a will to be valid, the court must be satisfied that the testator knew and approved of its contents.

Knowledge and approval means that the testator must have understood and approved of the contents of their will. Proof of knowledge and approval can be demonstrated by evidence that the testator had read and given approval of the contents, or had received advice regarding the contents. Where the will was duly executed and there are no questions regarding testamentary capacity, there is a presumption that the testator knew and approved the contents.

It is common for questions to be raised as to whether the testator understood the contents of their will.

4. What is Undue Influence in Succession Law?

Undue influence in succession law is where a person makes a will as a result of coercion.

The coercion does not require physical violence but does require the testator to be prevented from exercising their free will.

5. What happens to a Will prepared under Suspicious Circumstances?

A will prepared under circumstances which raise suspicion may be invalid and made be challenged on that basis. However, the facts and circumstances of the case and the degree or egregiousness of the suspicious circumstances will be relevant.

The court will not grant probate for a will that is invalid and will either issue a grant for an earlier valid will, or where there is no will, grant administration.

6. Who is the Testator?

The ‘testator’ is the person who makes a will.

7. What is Due Execution of the Will?

Due execution of a will is a phrase used to describe a will that is executed in accordacne with the formal requirements as set out in the Succession Act 2006 (NSW).

8. What is a Probate?

Probate is an order of the court which determines a will to be valid and appointing an executor to administer the estate. Probate can be granted in ‘common form’ or ‘solemn form’. The executor applies for probate and propounds the will.

A grant in ‘common form’ is usually sought in non-contentious proceedings where there is no dispute as to the validity of the will.

A grant in ‘solemn form’ is usually appropriate in contentious proceedings where there is a dispute as to the validity of the will. A grant in solemn form will result in a court judgement binding on all parties and only able to be impugned in limited circumstances.

9. Can a Will be challenged after a Grant of Probate?

Yes – a will can be challenged after probate has been granted on many grounds, including validity, capacity, undue influence, suspicious circumstances, or fraud. However, if a claim is commenced too late, the executor have may already distributed some or all of the assets, which may prevent a claim, or otherwise render a claim pointless.

Therefore, although there is no strict time limits in most cases, anyone contemplating challenging a will should seek legal advice as soon as possible to best protect their position.

10. Does this differ from a Will Contest?

Yes – challenging a will and contesting a will are two different concepts and should not be confused.

When a person challenges a will they are taking issue with the validity of the will itself – whereas a person who contests a will is taking issue with adequacy of the provision made in the will.