Contesting a Will – facts and details

 A Will is a document that an individual formulates to declare how and to whom he would want his assets distributed after his demise.

All too often we find individuals contesting a Will in the court. On the face of it, it is indeed tough for anybody to challenge a Will. The court views the Will document as the voice of the person who has made it. Hence it becomes the court’s duty to be strict about it.

Usually, it is the spouse or the immediate family that gets into contesting a Will. Otherwise, anybody who could have an interest in the Will or would stand to gain from it could challenge it.  The challenging party tends to focus on either the mental state of the testator or the fact that he/she was forced to write the Will in a certain way.

While questioning the mental capacity of the person making the Will, it has to be proven that the individual who was making the Will did not understand the implications of making it. In other words, one would have to show that the testator was senile, insane, suffering from dementia, under the influence of a substance or lacking the mental capacity to make any decision and didn’t understand the consequences of making the will at the time of its creation.

In a precise way the testator while creating a Will should know:

1. the value and scope of the property
2. the inheritors of the will and to whom the testator has to provide for
3. how he/she wants to distribute the estate
4. elements he/she is providing in the Will
5. relation of the provided elements with the disposition of the property

• One can take the initiative of contesting a Will if he/she can prove that the document was obtained by forgery, fraud or undue influence. In other words, the challenger has to show that someone manipulated the testator into leaving part of or full property to the manipulator.

Note: Undue Influence means that the individual was affected by another person to act against his/hers free will or without any attention to the consequences.

A person can take the step of contesting a Will if he/she can prove the testator has updated the will before the demise. As per the law, the new Will trumps the older will. The old Will can be declared null and void if the will maker has shown his intent in the newer one or by the date stated on the document.

• The Will should be dated and signed by the will-maker in the presence of a minimum of two witnesses to protect it from any challenges. The witnesses can be anyone other than the heirs or any person named in the Will. If the witness is appointed to the will his/her share may be treated as void but the rest of the will be executed.
• In some states, handwritten Wills known as Holographic Wills are allowed. The Will has to be attested by two or more witnesses who have seen the testator sign the document. Such a document can be easily challenged as there are no witnesses. The court has to be convinced that the will is in testator’s handwriting and was created to be treated as a Will.

Other grounds on which one can contest a will are:

• The challenger can act on contesting a Will under the FAMILY PROTECTION ACT 1955 if the person is a close relative and feels that he/she was not provided appropriately.
• The person can contest under the LAW REFORM (TESTAMENTARY PROMISES) ACT 1949 if the deceased person promised to include him/her in the Will in return for services provided.
• The deceased’s husband or wife or a de facto partner can also manage contesting a Will under the equal-sharing rules of the PROPERTY (RELATIONSHIPS) ACT 1976 for his/her share.

Note: If the de facto relationship was for less than three years, the court could not rule in favour of the partner unless it is proved in the tribunal that

• not ruling for the de facto partner would mean injustice towards him/her
• there is a child from the relationship
• the individual involved in the relationship has made a valuable contribution