Can Last Minute Changes to a Will be Contested?
It’s not uncommon for testators to action changes to their will at the last minute. In many cases, this sparks confusion among those who are directly impacted by the testator’s amendments.
Maybe certain family members were suddenly cut out of the testator’s will altogether, while the inheritance of others increased substantially. Alternatively, the deceased may transfer assets to individuals right before their passing, completely diminishing the value of their estate. In such instances, beneficiaries who once expected to receive particular assets or funds may find that, when it comes time to administer the estate, there’s nothing left for them to inherit.
In what’s already an undeniably difficult time, such occurrences can cause those closest to the deceased to question what led them to make certain decisions right before their passing.
The Difficulty with Making Last Minute Changes to a Will
Given certain circumstances, beneficiaries may have doubts as to whether the deceased actually intended for their final will and testament to be updated. If the testator was suffering from an illness, this will usually further amplify the concerns of those closest to them. This is because, in such cases, the testator’s ability to think clearly may be impaired, leaving them particularly susceptible to manipulation or coercion from other parties.
While it’s important to keep your final testament up-to-date, if you’re making changes at the last minute, your will’s validity may be questioned. In such cases, the circumstances under which any changes were made will likely be taken into account. For instance, the Court may consider your health at the time alterations were actioned, as well as the significance and scale of any updates.
If it’s established that at the time certain amendments were actioned you didn’t have sufficient testamentary capacity; your wishes may fail to hold legal merit. In such instances, particular provisions in your will may not be enforceable and, because of this, the Court will administer your estate either wholly or partially in accordance with intestacy laws.
If the testator was subjected to manipulation or coercion and, due to their vulnerable position, was unaware of the changes they were making and their implications, outcomes of this nature can be incredibly favourable. However, if you’re of sound mind and want to make last-minute changes to your will, taking action to reduce the viability of such claims against your estate is crucial.
Thus, if you’re planning on making changes of any degree to your existing will, it’s important to ensure there is sound evidence supporting the notion that you do, in fact, have the mental capacity to do so. For instance, if you’re suffering from an illness at the time certain amendments are made, you’ll likely find it beneficial to complete an assessment with your medical practitioner and/or psychiatrist. Ultimately, this can be used to help prove that at the time your will was changed you had sufficient testamentary capacity.
Codicils and Minor Changes to a Will
A codicil is a short document, usually only one or two pages, that is created alongside your existing will.
If a testator wants to make minor changes to their current testamentary wishes, a codicil can be a convenient, practical option for them. For instance, if an individual is gravely ill but wishes to make last-minute changes to their will, a codicil can allow them to do so without having to recreate their entire will and complete the associated formalities.
When a codicil is used to alter a particular part of a will, the testator also confirms all other provisions that they made prior to this.
However, it’s important to note that codicils can only be used in circumstances where the testator is making minor changes to their will. Amendments an individual may wish to make in a codicil include but aren’t limited to, the following:
- Removing/appointing a new executor;
- Instructing individuals on how their pet/s ought to be cared for in the event of their passing;
- Expressing which beneficiary they would like to inherit a certain, recently acquired asset;
- Changing your wishes regarding which individual ought to receive a particular asset or financial sum.
While it may be tempting to write your codicil yourself, it’s highly recommended that you seek legal assistance from an experienced professional who understands the technicalities of such documents. This is because, when it comes to enforcing your wishes, it will be far less likely that any mistakes or the like will negatively impact the way your estate is administered.
Similarly to the process of creating a valid will, your final codicil will need to be signed in the presence of witnesses. While individuals aren’t limited to creating just one codicil, if you’re going to make numerous changes to your will, you may be better off simply revising the document itself. This may also be a more suitable option if your will was created a considerable time ago, as it allows for you to manage and address any inconsistencies with greater effectiveness.
Contesting Last Minute Changes to a Will
If a testator actions last-minute changes to their will, those closest to them may be left confused and/or unsure as to whether they fully understood the implications of their actions.
If an eligible person believes they didn’t receive adequate provision or that the will itself is invalid, they may decide to pursue a claim against the estate. There are various circumstances under which this may be the case so, if you feel you have a plausible claim, the first step is to get in touch with an estate professional. With extensive experience in the field, an estate lawyer can assess the merit of your case and provide you with invaluable expert guidance.
On what grounds can you contest last-minute changes to a will?
Lack of Testamentary Capacity
Last-minute amendments are often made by those suffering from an illness who; due to concerns around their health, start to reconsider the way in which they would like their estate to be distributed. However, as mentioned earlier, whether the testator had the mental capacity to knowingly action such adjustments may come into question at a later date.
Testamentary capacity requires that at the time an individual writes and validates their will they are of sound mind and able to:
- Understand that the document they’re making will act as their final will and testament;
- Understand the implications of any changes to their will;
- Know the nature and value of their estate;
- Comprehend the consequences of including or excluding certain people from their inheritance.
In cases where any of the above criteria aren’t satisfied, an eligible person may challenge the will on the grounds that the testator lacked testamentary capacity.
The Testator was Unduly Influence
Similarly, those suffering from an illness may become vulnerable, leaving them at risk of being unduly influenced, coerced or put under duress. If you believe a loved one was subjected to any such treatment, you may challenge the validity of their will.
To be successful in such a claim, you would need to show that there is no other reasonable reason why the testator would’ve actioned the last minute changes in question.
You Didn’t Receive Adequate Provision for Proper Maintenance & Support
If you weren’t adequately provided for in a will or you were completely omitted from mention, you may have sufficient grounds to contest the estate. As with the previous approaches to making a claim, it must first be determined that you are, in fact, an eligible person.
As detailed in the Administration and Probate Act 1958 (Vic), an ‘eligible person’ is an individual who was either:
- The spouse or domestic partner of the deceased at the time of their passing;
- A former spouse or former domestic partner of the testator;
- The child, step-child, adopted child or grandchild of the deceased;
- A person who the testator treated as if they were one of their children;
- Dependent on the testator;
- A member of the deceased’s household.
When an individual pursues a claim of this nature against the estate, the Court will consider various factors during legal proceedings. When deliberating the appropriate outcome, the following will likely be taken into account:
- The closeness of your relationship with the deceased;
- Your ‘need’ to acquire a greater share of the estate, relative to that of the other beneficiaries;
- If you were dependent on the testator’s ongoing support;
- If the deceased had an obligation to provide for you;
- The size of the deceased’s estate;
- If you have any physical, mental or intellectual disabilities;
- Your character and/or conduct;
- Any contributions you’ve made towards the deceased’s welfare or estate.
Interested in Contesting Last Minute Changes to a Will?
If you’re considering contesting last minute changes to a will, the best time to act is now. Estate disputes can be complex so if you’re unsure where to begin, getting in touch with an inheritance lawyer is a good first step to take.
At Hentys, our team of will dispute specialists have over 25 years of experience in handling and resolving estate claims. Contact our team today to discover how our experts can help you.
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