When clients come to me about drafting a will, they often ask me whether decisions they’re making can be challenged. The answer is a resounding ‘Yes’.
The real question is whether that challenge will be successful and that, of course, depends on the circumstances.
If the will appears rational and correctly executed the Court will presume that the owner of the will was mentally competent unless there are suspicious circumstances.
Here are seven examples of suspicious circumstances that could lead to a successful challenge:
- Weak physical and mental state e.g. medical evidence of significant cognitive impairment and continual deterioration.
- Evidence of confusion e.g. concerns by friends or family that you would have signed anything put in front of you.
- Lack of care in preparation by the lawyer e.g. No written record or over 5 typos.
- A carer is left a substantial benefit.
- The terms of the will changed significantly from previous wills e.g. it excludes persons who you would expect to inherit.
- Questions concerning the witnesses e.g. a doctor witnessing a will should not only be satisfied about your capacity and understanding but also make a record of the medical examination and findings.
- If a person who is left a substantial benefit was a controlling force behind instructions to make the will e.g. someone who took you to a lawyer and was in the lawyer’s office when the will was signed.
Ultimately the Court must be satisfied that the will reflects the real intention of the person leaving it. If someone believes they have a well-grounded suspicion, the court will look closely at the evidence to decide if you approved and were aware:
- that a will was being made;
- of the estate and its value;
- of the persons who could be expected to receive an inheritance in the circumstances; and
- of the strength of the claims of potential beneficiaries.
For all these reasons, it makes sense to talk to an experienced lawyer when drafting your will to ensure that the proper questions are asked and correct advice is given.