A person contesting or defending a will may obtain evidence from various sources and in various forms. 

The overarching objective when gathering evidence is to identify, obtain and/or collate evidence that advances your case. An experienced wills and estate lawyer will be able to advise you on what is best for you and your case.

The Importance of Evidence in Will Contest Cases

The success of a family provision claim will often depend on the extent and quality of the evidence. Strong claims at law can fail if they are not supported by sufficient evidence.

Evidence comes in many forms including written evidence, testimonial evidence, physical evidence, expert evidence, records and information from third parties, digital and electronic evidence, medical evidence, and expert evidence.

Types of Evidence That Can be Used When Contesting a Will

Written Evidence

Once court proceedings have commenced, each party to a family provision claim will be required to set out their written evidence in a document called an ‘affidavit’. 

Affidavits most often contain a first person narrative of the person’s memory of the events relating to the claim. Supporting documents referred to in the body of the affidavit can be attached behind the affidavit as ‘exhibits’ and numbered accordingly. 

Affidavits need to be filed with the court and served on opposing parties to the court proceedings. At the hearing, the court will consider the admissible evidence contained within each affidavit and use them to make factual findings.

Testimonial Evidence

Testimonial evidence is oral evidence that a person gives in court.

This may include oral evidence given in response to questions asked by the person’s own lawyer, where for instance they have been asked to elaborate on or clarify a statement in their affidavit.

This may also include oral evidence that the person gives in response to questions asked by the other side’s lawyer during ‘cross-examination.’

Physical Evidence

Physical evidence is any material object that may be relied upon in court proceedings. 

Examples of physical evidence in will and estate disputes can include documentary evidence including wills, prior wills, solicitor file notes, the deceased’s letters, file notes of the family members and other non-documentary evidence. 

Expert Witness Evidence

Expert evidence is opinion evidence that is given by a person and is expressed to be wholly or substantially based on the person’s specialised knowledge based on his or her training, study or experience. 

An example of expert evidence in will and estate disputes includes evidence from a geriatrician or similarly specialised medical practitioner as to whether the will-maker (known as the testator) had the requisite testamentary capacity at the time of making their will.

Whilst expert evidence is not conclusive, a court will have regard to the expert evidence when making findings in relation to the testator’s testamentary capacity.

Records and Information from Third Parties

Evidence may be given by third parties who possess relevant and probative evidence to the issues in dispute. 

Examples of evidence that comes in the form of records or information from third parties includes government records, valuation reports, and file notes of the will-drafter solicitor. 

Digital and Electronic Evidence

In some cases, the will maker (known as the testator) may have been the subject of an electronic recording around the time of making their will.

Cases involving digital or electronic recordings have included: where a testator has made an electronic will (as opposed to a written will); where a testator is subject to a testamentary capacity assessment by a medical practitioner or solicitor at the time of making their will; where the testator reads or is read their will on video; or where potential beneficiaries have made covert recordings of the testator promising a gift. 

As with all forms of evidence, not all digital or electronic evidence will be admissible in court proceedings and admissibility will depend on the evidentiary provisions.  

Medical Evidence 

Medical evidence can include evidence from the doctors and physicians who treated the testator during his or her lifetime. The evidence often includes consultation notes, referral letters, and test results.

This evidence is helpful in providing a timeline of any medical diagnoses over the course of their life and particularly, the identification and extent of any medical issues that may impacted the testator’s testamentary capacity at the time of making their will, including for example dementia and/or Alzheimer’s. 

These documents may also be examined and relied upon by other medical experts when preparing an expert report. 

While the testator’s contemporaneous medical records are often important to help the court make findings regarding testamentary capacity, they are not conclusive and other evidence such as evidence from friends and family are also helpful in assessing the testator’s testamentary capacity.

Gathering Evidence in a Will Contest Case

Tips for Collecting Written Evidence

If you are involved in a will dispute it is important to engage an experienced lawyer as soon as possible as they will be able to explore the avenues through which evidence may be obtained and obtain the evidence that supports your case.

As written evidence is usually given via a formal document called an affidavit, a lawyer will usually be engaged to assist with preparing an affidavit to ensure the evidence in the affidavit is relevant and admissible. 

To obtain evidence from a witness, the lawyer will arrange a conference with the witness (either in person, via phone or video) to discuss the witness’s evidence. During the conference, the lawyer will ask the witness questions to elicit evidence from the witness that is relevant to their client’s case. 

The lawyer may prepare the affidavit during the conference or may take file notes and prepare the affidavit after the conference.

The lawyer will conduct a witness conference with each witness separately to preserve the integrity of the evidence and avoid it becoming tainted.

Strategies for Obtaining Testimonial Evidence

Unlike written evidence, where a party has ‘control’ over what evidence they include in a written affidavit, testimonial evidence can be more challenging. 

Cases can be lost if a witness gives unexpected evidence which proves detrimental to a client’s case. 

To minimise the risk to a client’s case, it is often prudent for the lawyer to attend at least two conferences with each witness to allow a thorough and critical examination of each witness’s evidence. 

How to Find and Use Expert Witnesses

How to find an expert will depend on a number of factors.

First and foremost, the expert should be someone who has specialised knowledge, based on his or her training, study or experience, upon which they can express an expert opinion. For instance, a party who requires an expert to prepare an expert report on the testator’s testamentary capacity would be wise to choose a person with extensive experience in assessing testamentary capacity in the elderly, either as a geriatric physician or a psychologist and similarly, a party who requires an expert to examine and report on the authenticity of the signatures on the will, would be wise to select a forensic document examiner or handwriting expert. 

Secondly, a client may wish to select an expert based on fees. Given there can often be significant variations in the fees of different experts, several quotes may be obtained from different experts. 

Importantly, the evidence that the expert gives should advance the client’s case and preliminary discussions may be needed to vet the experts position before they are formally retained. In some cases, multiple experts may be needed to identify the most appropriate expert for the client’s case. 

Once an expert is engaged, a lawyer can assist with preparing a letter of instruction to the expert which contains the relevant facts and questions that require answering. An experienced lawyer will be able to help draft the appropriate documentation to elicit expert evidence which best advances the client’s case.

Techniques for Preserving Physical Evidence

The process for preserving physical evidence will depend on the nature of the evidence. 

A document or recording may be preserved by making a copy and saving the original and the copy separately, in safe storage. 

Other physical evidence, particularly delicate physical evidence, may require expert storage. These cases are rare, but do arise occasionally.

If you have any questions regarding items of physical evidence, we recommend that you contact an experienced wills and estate lawyer who can assist you with preserving your evidence. 

Steps for Requesting Records and Information from Third Parties

Documents may be obtained voluntarily, by law or by court order. 

In some cases, a person may be willing to assist by providing documents voluntarily. For instance, a friend or family member who is ‘aligned’ with your client or their case may be willing to provide written evidence, file notes, text messages, emails etc voluntarily. 

Other cases may involve documents that are private or of a confidential nature, in which case you may need to meet certain requirements before being entitled to a copy of a particular document. For example, an executor is required to provide a copy of a will to those persons entitled to a copy under the Succession Act 2006 (NSW), but not those who do not fall within the list of those people entitled. 

There are also cases where the person refuses to provide the document voluntarily. In these cases the person may be able to obtain a copy of the documents by applying to the court for a subpoena compelling the party to produce the relevant documents.

Organising and Presenting Evidence

The form and order of the evidence will depend on the nature and stage of the matter. 

Tips for Organising Your Evidence

Before court proceedings have been commenced, a party may identify, gather and collate evidence. Identifying evidence at an early stage can be useful for negotiations and mediation and can promote an early resolution.

Once court proceedings have been commenced, each party will be required to file and serve evidence, in a formal form, as required by law or court order. 

Strategies for Presenting Your Evidence Effectively

The successfulness of evidence will often depend on how it is presented. Strong evidence, presented poorly, can result in the evidence being overlooked or having less impact. 

It is for this reason that all evidence should be collated and prepared by an experienced solicitor and/or barrister to present evidence with most impact. 

The Role of a Solicitor in Gathering and Presenting Evidence in a Will Contest Case

As with most legal disputes, a case is only as strong as the evidence available to prove it. 

A solicitor’s main role in gathering and presenting evidence includes identifying, collating and preparing admissible evidence that proves and advances their client’s case.

Whilst formal evidence will be required if a matter proceeds to court, evidence can also impact the success of early-stage negotiations and/or mediation so it is important to identify, gather and collate evidence as early as possible. 

Empower Wills and Estate Lawyers are Specialists in Will Disputes

If you are wondering what evidence you need to commence or defend a claim against a deceased estate, contact us now for a free initial consultation.

We offer flexible fee structures tailored to each client including sliding fee scales, payment plans, pensioner discounts, and conditional “no win no fee” costs agreements in select cases. 

Contact us now via email on [email protected] or phone on 1300 414 844. 

Want to learn more?

Read more about how to contest a will in NSW here.

Read more about who can contest a will in NSW here.

Read more about why you should consider mediation when contesting a will here.

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.