Can an informal Will be challenged?

What is an informal Will

An informal Will is a document which is intended to be the deceased’s testamentary wishes, but it is not created in a manner which meets the legal requirements for the execution of a Will.

In accordance with s 9 of the Wills Act 1997 (Vic), if the Supreme Court is satisfied that the deceased person intended the document to be his or her Will then the Court may admit a document in the form of an informal Will to probate, thus becoming the Will of a deceased person.

Legal requirements of an informal Will

In order for the Court to determine whether the deceased intended the document to be his or her Will the following requirements apply:

  1. It must be a document, meaning it must be paper or material with writing on it. The legislation now accepts audio or video tapes as a document.
  2. The contents of the document must be conveyed in such a way as to record the testamentary wishes of the testator.
  3. The document must intend to operate as a Will and nothing else.

Once the Supreme Court grants Probate to the executor, which is simply a step wherein the Court confirms that the Will is valid, an informal Will can be challenged in the same manner as a formal Will can be.

When an informal Will can be challenged

1. Testamentary capacity

A Will can be challenged based on the grounds of testamentary capacity, which is a claim arising from the belief that the testator did not have mental capacity to understand the nature and implications of their Will. In order for a plaintiff to prove that the deceased did not have testamentary capacity they must establish the following:

  1. that the deceased lacked the awareness and knowledge required to create the Will;
  2. that the deceased lacked the understanding of the circumstances and extent of their assets;
  3. that the deceased lacked the ability to comprehend the claims which others may have against the estate;
  4. that the deceased was suffering from a mental disorder or insane delusion at the time of creating the Will.

2. Undue influence

A Will can also be challenged based on the ground of undue influence. Unfortunately due to the frailty and perhaps cognitive impairment of elderly people in the community they can be exposed to undue influence or duress in order to prepare a Will, which tends to favour one beneficiary over others. It must be established by the plaintiff that the deceased person was unjustifiably influenced and pressured to create the Will in question and that the pressure could arguably be considered coercion, leading the deceased person to prepare and execute a Will which conflicts with their beliefs and wishes.

There are four elements which must be proven by the plaintiff to establish that the deceased was unduly influence, they are as follows:

  1. The will leaves assets in a manner that is considered out of the ordinary of the testator. For example if close relative were left out in favour of others without a clear explanation.
  2. The testator was to a substantial degree dependent on, or trusted, the person who exerted influence over them.
  3. The testator was vulnerable to undue influence as a result of illness or frailty.
  4. The influencer took advantage of the will-maker and significantly benefited from the distribution of assets that were outlined in the will.

3. Suspicious circumstances

Finally, a will can also be challenged on the based on suspicious circumstances. Suspicious circumstances involving a will can arise when significant changes are made not long before the testator’s death. Often changes are made which substantially favours one beneficiary over others, a new beneficiary who has recently entered the testator’s life is added into the will as a major beneficiary and that the said beneficiary played an integral part in the creation of the recent will.

The case of Tobin v Ezekiel [2011] NSWSC 81, amongst other factors, considered the link between a lack of knowledge and approval on the part of the testator, which could lead to the impression that the will was drafted under suspicious circumstances. In that case the court said ‘any relevant suspicion must be one that casts doubt on whether the testator knew and approved the contents, and must relate to the preparation and execution of the will…’

Challenging an informal Will: Next steps

If you believe you may have grounds to challenge a Will or if you think that you may find yourself in a Will Dispute, or needing to Defend a Will please do not hesitate to contact the team at Hentys Lawyers today.

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