have made a valid Will. You now believe your Executor
is capable of responsibly administering your Estate
and fairly distributing the assets to your beneficiaries
according to your wishes when the time comes. You
believe that this will prevent any dispute over
your Will. Unfortunately this may not be the case.
Having a Will does not mean that there will never
be a dispute about your Will.
is important to keep your Will up-to-date as circumstances
change in your life. Consider the following scenarios:
left me for a younger man
at 60 is financially secure, having sold off a successful
franchise business for a handsome profit. However
Tom has spent most of his time running the business
and Bianca, his wife of 30 years has left him for
her younger tennis coach.
and Bianca divorce. Tom makes a new Will after the
divorce. He leaves his whole estate to his only
grandchild. He feels he has not been supported during
this difficult time by his two daughters so he omits
them from his new Will.
decides to move on with his life and learn new computer
skills. He attends training sessions and develops
a relationship with Jane, one of the trainers. They
marry a year later. Tom and Jane are involved in
a freak car accident, Jane survives but Tom dies.
Tom’s Will be challenged?
we know Tom made a new Will after he and Bianca
divorced. However, although this may have been a
valid Will, as soon as he married Jane this Will
was automatically revoked. As far as Jane is aware
Tom did not make a Will in contemplation of their
marriage, or after their marriage.
the answer is no, Tom’s Will cannot be challenged
because there is no valid Will in existence to challenge.
a Will Tom’s estate will be distributed according
to the rules of intestacy. Tom’s children
and his second wife, Jane, will inherit shares of
the estates as prescribed by state law. The granddaughter
will not receive anything.
the Family Provision Act 1982 a claim may be made
on an estate with or without a Will in existence.
Applicants must meet the definition of ‘eligible
persons’ under the Act. The needs of the applicant
are taken into account by the Court at the time
of hearing evidence showing how the testator left
inadequate or no provision out of the estate for
the applicant’s maintenance, education or
advancement. Tom’s granddaughter, 2 adult
daughters and/ or his widow, Jane may obtain legal
advice on the merits of making a Family Provision
years roll on
is now 80, he and Jane are separated (we hope she
didn’t take up tennis as well) and Tom has
employed young Bill to do the gardening, drive him
to appointments and attend to his general care.
Tom relies more and more on young Bill as his health
falters. He has no contact with his 2 daughters
and his granddaughter lives in Perth.
Tom makes another Will leaving a life estate to
Jane, a legacy of $40,000 to help his granddaughter
clear her HECS debt to the government and the rest
of his estate to young Bill who is always there
for him. However Tom is becoming forgetful.
after Tom is admitted to a nursing home. Signs of
early dementia are recorded. Young Bill makes daily
visits to him. Tom dies from complications with.
this Will made recently by Tom valid?
of the Will is checked and it appears to have been
properly signed by Tom and two independent witnesses.
However it raises two important questions:
young Bill exercised any undue influence over
Tom had the necessary capacity to make a Will
someone stands to inherit substantially they may
have to prove to the Court there was no trickery
or pressure put on the testator. Testamentary capacity
must be carefully noted at the time of making the
Will if there is any doubt on this point. Statements
by examining medical staff would assist clarify
the question of capacity.
challenge to a Will on the grounds of undue influence
or lack of mental capacity on the part of the testator
may be made before the Will is presented for a grant
of Probate in the Supreme Court.
the actual case of Tonkiss & Anor v Graham &
Ors NSWSC891 the testatrix, Marjorie Thompson,
died in 1997 aged 97 years. Her husband, parents
and 7 siblings all predeceased her and she had no
Court found that:
the testatrix had some history of delusions
(concerning people getting into her home) before
she moved into a nursing home, there is nothing
to show that these delusions impacted on her
testatrix knew and approved of the gift (even
though to the spouse of an attesting witness)
and consequently the gift was not void.
testator must always make his Will freely. This
will not be the case if the testator was subject
to any coercion. This does not have to go so far
as actual bodily harm.
In the very old case of Winton v Winton it was confirmed
that the degree of coercion sufficient to constitute
‘undue influence’ may vary with the
circumstances – and in fact could be very
little in the case of an old and feeble testator.
We accept instructions in this area of will
makers seeking advice on making their Will ‘dispute-resistant’
Executor of an estate defending a challenge
to the Will
who believe a Will:
been made by a willmaker (testator or testatrix)
lacking mental capacity, or
not made freely but was made under the undue
influence of another person
possibly be overturned and wish to discuss the
merits of a challenge to the validity of a Will