For a will to be valid, it must satisfy formal requirements of being in writing, dated and signed by the will maker in the presence of two qualified witnesses. If a will does not satisfy these requirements, a party may bring a claim contesting a will, and the will may be deemed invalid and void by the court.
A court may also hold that a deceased person’s will is invalid if, the person did not have sufficient mental ‘capacity’ at the time he or she made the will or if he or she was unduly influenced or placed under duress by another person to draft their will in a certain way.
Beneficiaries or family members may seek a court order declaring a will to be invalid (contesting a will), where the circumstances demonstrate that the will does not reflect the true intention of the testator.
Contesting a will – What mental capacity is required for a will to be valid?
To make a will, you must be at least 18 years old and have the appropriate level of mental capacity or comprehension. This means a testator (person making the will) must:
- appreciate the significance and legality of making a will;
- understand the nature, extent and value of their estate;
- have an awareness of persons who may reasonably have a right to receive an inheritance from them; and
- have the ability to determine the relative strengths of claims persons may have on their estate.
Before an elderly person makes a will, it is a good idea to get the opinion of a doctor or specialist as whether the person has the appropriate capacity.
Contesting a will – What is undue influence?
Undue influence occurs when a will maker is put under such undue pressure by the conduct of another person, that the will can be said to be a product of the other person’s conduct and not the free, voluntary and independent intention of the will maker.
It normally occurs in relationships where there is an inequality of power, causing the weaker party to submit to the wishes of the dominant party. In fact, a court presumes undue influence in specific relationships, including those between a parent and child, lawyer and client and physician and patient. However, this presumption can be disproved.
Undue influence does not need to be exercised intentionally by the person to coerce the testator. However, most cases involve a family member, friend or trusted acquaintance who has exercised influence with the intention of forcing a desired gift in the testator’s will that is contrary to the true will of the testator.
Contesting a will – What is duress?
Duress is similar to undue influence, but usually involves harassment or threats of physical force, damage to property or refusal to perform some act in order to coerce the testator to draft their will in a certain way.
Again, this results in the testator being unable to express their independent, free and voluntary choice to distribute their estate as they wish.
Anyone alleging that duress has occurred has the responsibility of proving this to the court.
What happens if a will is declared invalid?
If a deceased’s will is declared invalid by a court, then the previous will made by that person will be held as the valid will.
For example, if a testator made a will in 2012 with full capacity, but then made an amended will in 2015 which was later found to be invalid by the court, the estate must be distributed in accordance with the earlier 2012 will.
If the person had no prior wills, their estate would be distributed in accordance with the laws of intestacy.
DIY Kits – Wills and Estates Legal Documents
Get Wills & Estate Planning Law Help Now!
Ask a free legal question in the Wills & Estate Planning Law Forum.
Get legal advice from an Australian Wills & Estate Planning Lawyer near you.