7 Key Ways That a Will Can Be Ruled Invalid and So Open to Being Contestable

There are several issues that, if unattended to, may make a Will invalid. Sometimes this may be because of invalid execution due to a lack of compliance with the legal formalities. At other times, more disputable matters can be involved, such as a lack of mental capacity or the application of undue influence on the Will-maker (or testator). These types of claims can involve particularly complex evidential and legal arguments.

If a Will is found to be invalid after death, it could have serious implications for the beneficiaries and be costly to resolve. At Szabo & Associates Solicitors we can provide expert help in writing a Will as this eliminates as far as possible the risk of your Will being found to be invalid.

What can make a Will invalid?

Seven key ways that a Will may be found to be invalid are:

1.  A lack of compliance with legal formalities

To execute a valid Will it is necessary to comply with s6 of the Succession Act 2006 (NSW).  A Will is invalid if:

(i) It is not in writing and signed by either the testator (or by some other person in the presence of and at the direction of the testator); and

(ii) The signature is not made or acknowledged by the testator in the presence of witnesses; and

(iii)  Two or more witnesses have not attested and signed the Will with the testator being present (but not necessarily in the presence of each other).

(iv)The testator or other person signing did not sign with the intention of executing a Will.

1.  A lack of currency as the testator’s legal rights have changed

A Will may not be up to date as the testator’s legal rights have changed. Certain key life events have the potential to impact on a Will, sometimes to the extent of invalidating it. Factors that could alter the legal rights of a testator include marriage, divorce, or the death of a beneficiary.

1.  A lack of testamentary (mental) capacity

If the testator did not have mental capacity at the time of making the Will it will be invalid. This can be challenged by investigating whether the person was sufficiently mentally fit at the time of making the Will.

The 4 part test to establish capacity was originally set out in the English case Banks v Goodfellow (1870). To write a valid Will means the testator must

• understand the nature of the Will and its effect
• have an idea of the extent of the property being distributed
• be aware of the persons for whom the testator would usually be expected to provide
• be free from any delusions of the mind that would cause them not to benefit those persons

Whether the testator had the required mental capacity at the time the Will was made can be highly contentious involving medical opinions and complex legal argument. 

1.  A lack of currency as the Will has been superseded 

If another Will has been made at a later date than the Will under consideration then it is not the last Will and has been superseded by the later version.

1.  A lack of legitimacy through fraud or forgery

A Will can be challenged as to its validity if fraud or forgery has been involved. For example, if the testator has been misled into signing a Will or if someone altered the Will after it was initially signed. For a successful challenge it would need to be established that the fraudulent conduct directly contributed to the making of the Will and for the sole purpose of obtaining a benefit.

Forgery would require evidence that the Will was made by someone else or signed by someone other than the testator.

1.  A lack of legitimacy because undue influence or duress on the testator has occurred

Undue influence refers to the situation where the testator may have been pressurised or coerced into changing their mind. A Court will consider the physical or mental state of the testator as an indicator of susceptibility and will try to establish whether the Will is an accurate reflection of their wishes and not those of someone else.

Finding evidence to support a claim of undue influence can be difficult as often the coercion will have been done in private and will not appear in written correspondence. It is important to consider the available evidence carefully as the Court will rely on its quality.

1.  A lack of knowledge and approval by the testator of the Will’s contents

 A person is presumed to know and approve of the contents of their Will. The Will may be invalid if there are suspicious circumstances which throw doubt on this presumption. If suspicious circumstances are evident the person putting forward the Will as being valid must establish that the deceased knew and approved of the contents to dispel the suspicions raised.

What happens in NSW if a Will is not valid?

If a Court decides that a Will is invalid, it will make an Order as to what is to happen to the deceased’s estate. If there is a previous valid Will, probate will be granted in respect of that Will. Should there be no Will the estate will be administered according to NSW’s intestacy laws.

What if a Will is valid but is just not fair?

While a Will may be valid a person may still wish to contest its contents. A common claim is one that arises when an eligible person feels they have not been given an adequate share of an estate to which they are entitled to by virtue of their relationship to the deceased. In this case they can apply to the Court for a family provision order within 12 months of the testator’s death. 

Contact our Contesting a Will Solicitors in NSW - Sydney Solicitors for Contested Wills Claims

To find out more about what is involved in challenging or contesting a Will or any Wills and probate disputes, please contact the experts at Szabo & Associates Solicitors on 02 9281 5088 or complete the online contact form.