Contesting a Will: An Issue for the Stars Alone?

For many people the idea of challenging the last Will and testament of a loved one is very strange. Most people understand someone's Will to be a legal document, and given that they are no longer around to speak to it, there is often some confusion as to how it is possible, let alone why, anyone would every want to challenge a Will’s terms.

The reality is that the act of challenging a Will is not that unusual. Indeed, even among the rich and famous there have been some notable instances where a Will has been challenged (reported here). Among some of the more notable challenges is that of former Playboy Playmate Anna Nicole Smith, against the terms of her late husband – 62 years her senior – J. Howard Marshall II. The pair’s year long marriage, ending in Marshall’s death grabbed media headlines. Marshall had drafted a Will which left his billion-dollar estate to the son he had with Smith. However, Smith claimed she was entitled to a share in the estate and subsequently mounted what led to a nearly 20-year legal battle to overturn the terms of the Will. Smiths challenge was dismissed in 2014.

While most people may not necessarily be challenging a Will which relates to an estate valued at that of Mr Marshall, it is still very much possible for a legal challenge to be raised against the terms of a loved one’s Will. In this blog post, we highlight the avenues that can be used.

Challenging a Will: Understanding the Basics

When you challenge or ‘contest’ the terms of a Will, you are challenging its validity as a legal document. The law has been designed to limit those parties that are legally capable of bringing a challenge – this is in part to reduce the risk of spurious claims being made. Further it is also to do justice to the fact that generally speaking, only those that are capable of having an interest in the deceased and their estate should be allowed to make a legal challenge.

In terms of those who would be able to raise a challenge against a Will, these include:

• the wife or husband of the deceased person at time of death
• a person that the deceased was living in a de-facto relationship with (this includes same sex partners)
• a child of the deceased person
• a former wife or husband of the deceased person – you can read the judgement one of our client’s received in just such a case here.
• a person who was, at any particular time, wholly or partly dependent on the deceased, and at any time a member of the same household as the deceased
• a grandchild who was at any particular time wholly or partly dependent on the deceased person
• a person with whom the deceased person was living in a close personal relationship at the deceased person's death

While it may seem that the category of persons that are capable of raising a claim is quite wide, in fact the pool is rather limited. The law prevents ‘anyone’ simply raising a claim and confines the right to challenge to those that were likely to be closest to the deceased. It should be pointed out however that there are strict time limits to be observed, regardless as to who intends to make a challenge.

Technically there is a time limit to 12 months following the death of the deceased to mount a challenge to their will. It is possible for the court to allow a challenge outside this time limit but this tends to be quite rare, and the courts are loathe to allow it unless the circumstances are sufficiently important to warrant it. The case mentioned above (Milweski) was one such case where the Supreme Court of NSW allowed the claim out of time.

Bringing a Claim: Why is a Challenge Being Brought?

It isn't enough for someone to be able to identify themselves as having the legal right to challenge a Will. There will need to be just cause for raising the claim. There are in fact a few different reasons why a challenge can be made, but it should be noted that it is impossible for a challenge to be brought on the basis that a loved ones Wills terms are objectionable: neither the law nor the courts are interested in subjective interpretations of fairness. Some of the bases on which a challenge to a will can be mounted include:

Undue influence

If someone has been involved in helping the deceased to create a Will, and they in turn have benefitted from its terms, then they may be called upon to demonstrate that there was no use of intimidation or pressure in the Will making process. The courts will not necessarily deem every persuasive act to be illegal or evidence of undue influence. Their main concern will be that the deceased’s Will is not in some way a perversion or contradiction of what they would have otherwise intended.

Fraud

This is an example of where someone has been forced or tricked into signing a Will that is not reflective of their intention, and this can happen very easily. An individual may be presented with a Will and given every assurance that it is an accurate version of their intentions, when in fact it twists the situation or suppresses salient issues that need to be dealt with by the individual. The difficulty can sometimes be in actually proving fraud. It is important that you seek specialist advice from a knowledgeable lawyer in this case, as they will be able to advise you on the legal steps to be taken to prove this.

Forgery

Forgery is slightly unusual in that there can be a situation where a Will is a perfectly valid document – the legal requirements for its creation have been observed and its terms are a true account of what is intended, but it is not intended (for whatever reason) to be signed. An important feature of a Will is that the person that it relates to, sometimes described as the ‘testator’ needs to sign it. If their signature is forged, then this will immediately invalidate the Will. Proving forgery will be heavily reliant on expert testimony, which is why such a challenge is best handled by an experienced legal advisor.

Issues of mental capacity

A Will can only be valid if the testator signing it had the mental capacity to understand its terms, and what consequences follow from their signing it. Demonstrating a lack of mental capacity can be tricky and will need to be supported by evidence that a testator suffered from (i) senility; (ii) some other condition which impaired their medical ability; or (iii) the influence of narcotics or other substances on their judgement. It is important to highlight however, that evidence of an illness or of old age will not be conclusive of a lack of capacity. This will need to be supported by evidence that they did not understand what they were doing.

Getting Advice from Experts: Enter Szabo and Associates, Solicitors

While based in New South Wales, we also help people in Queensland, Victoria, Tasmania, Western Australia (WA) and South Australia (SA) with contesting a will, deceased estate litigation and more.

At Szabo & Associates, Solicitors we appreciate that you may be very wary of challenging the terms of a loved one’s Will, and the mental anguish that you have had to deal with in deciding to do so. Our lawyers are among the leaders in the Private Client sphere and make a point of giving you a clear indication of the prospects of making a successful challenge to the terms of a Will. If you would like to hear more, or for an initial consultation on your concerns, contact George Szabo today.