Objections to a Will being admitted to probate are generally based upon one or more of the following three grounds:

The willmaker lacked the requisite mental capacity to make the Will (testamentary capacity).
Although the willmaker retained the requisite mental capacity to make the Will, the willmaker did not know and approve the particular Will.
The willmaker was unduly influenced by another person to make the Will.

The dispute may be heard after a grant of probate, that is to say an application for revocation of a grant, but more commonly the validity of the Will is disputed before probate is granted.

Testamentary Capacity

For the purposes of satisfying the Court that the willmaker had testamentary capacity at the time the Will was made, it is generally accepted that the test used in the 1870 United Kingdom case of Banks v Goodfellow, remains appropriate. Following that test, in order to have the requisite soundness of mind a willmaker must (our summary opinion):

Understand the nature and effect of a Will. The simplicity of or complexity of a particular may have a bearing on whether the willmaker retained the requisite level of capacity.
Understand the nature and extent of their property. Handing over the management of share portfolios and real estate to advisers is not necessarily a bar to a finding of capacity.
Comprehend and appreciate the claims to which they ought to give effect. An unfair Will is not necessarily evidence of a lack of capacity but evidence that the willmaker was not able to weigh competing moral claims, for example the reasonable needs of children and grandchildren, could be strong evidence of a lack of capacity.
Be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition. Disputes around this element of the test often involve an exploration of the severity and type of dementia suffered by a willmaker. The Court may require expert evidence as to how the disorder of the mind impacted upon the first three elements of the test.

In addition to the above four-part test, it has been acknowledged in Court cases that there may be a ‘lucid interval’ where a person suffering from a mental illness may have testamentary capacity.

Knowledge & Approval

The person seeking to have the Will admitted to probate (usually an executor) is required to prove that the willmaker understood what s/he was doing and its effect, that is to say, that the Will truly represented the willmaker’s testamentary intentions. Generally, it is presumed that if a Will has been executed correctly, the willmaker knew and approved of the contents of the Will. That presumption can be displaced however if there are suspicious circumstances surrounding the making of the Will. Suspicious circumstances may include, for example, the declining health of the willmaker, the involvement of family in the making of the Will, the willmaker’s difficulties with language, eyesight and/or hearing. Simply reading the Will aloud to the willmaker may not be sufficient to satisfy the Court that the willmaker knew and approved of the contents of the Will. Similarly, a record of the willmaker saying “yes” when asked if the Will reflects their true intentions may not be sufficient to satisfy the Court that the willmaker actually understood what was signed. Useful evidence might include a record of a conversation with the willmaker in which questions were posed and answered.

Undue Influence

Probate undue influence (coercion) is notoriously difficult to prove. The burden is on those objecting to the Will being admitted to probate to prove that the willmaker signed the Will not by a deliberate act but due to the pressure placed upon the willmaker by another person. It is observed that children may request that a parent make a Will in their favour and may seek to influence a parent, without that influence reaching such a level as to overbear the free will of the willmaker. Where a lawyer is involved in the making of a Will, that is to say the lawyer stands between the influencer and the willmaker, it may be particularly hard to prove undue influence, particularly where the “influencer” is required by the lawyer to remain outside of the room while the Will is discussed and executed.

Costs

It is often suggested that no matter the outcome of a case, the costs of all parties should be paid out of the estate as the willmaker was the “cause” of the litigation. Where there is a proper basis to the grounds of the objection that may be a reasonable proposition (though note a costs order does not necessarily entitle a party to recover 100% of their legal costs from the estate) but one of the practical dangers in pressing the ground of undue influence is that a party could succeed on the grounds of lack of testamentary capacity and/or lack of knowledge and approval but lose on the ground of undue influence. Although that party may feel they won the case, the costs involved in the undue influence component of the case can be substantial and the party losing on that component may be left with a substantial costs order, particularly if the evidence in support of that component was weak.

Conclusion

Disputes regarding the validity of a Will require an assessment of the merits of the different grounds of objection to a grant at an early stage, often before the parties know what the evidence of treating medical practitioners or the lawyers involved in the making of the Will will be. The cases can be complex and the costs can be substantial. For these reasons, lawyers often encourage the parties, where appropriate, to seek to resolve the dispute before a trial. In another article we explain some of the factors to consider, including Federal and State taxation, when attempting to resolve estate disputes.

To discuss this article, or for further information please contact:

Edward Skilton
Special Counsel
Sladen Legal
T +61 3 9611 0145
Level 5, 707 Collins Street, Melbourne, 3008, Victoria, Australia
eskilton@sladen.com.au