The preparation of a will is an important legal process which ensures a person’s final wishes are carried out in the event of their passing. Unfortunately, this process can sometimes be clouded by legal challenges, particularly those involving testamentary capacity and undue influence.
Testamentary capacity
Testamentary capacity is a vital component to the will-making process. A person must have testamentary capacity to make a valid will.
The will-maker must:
- Be able to understand the nature and effect of a will.
- Be aware of the general nature and extent of their assets.
- Be able to appreciate those who have a claim on their bounty. This includes a spouse, de facto spouse, children (including adult children and stepchildren), and financial dependants.
- Not be suffering a disorder of the mind or insane delusions that poison their affections or influences their decisions.
The law presumes that a will-maker has testamentary capacity if their will has been properly executed in accordance with legislation. However, the will may be challenged if there is evidence that casts doubt on whether the will-maker had testamentary capacity at the time the will was prepared. A challenge to a will must be supported by strong evidence. Common grounds for contesting testamentary capacity include doubts about the testator’s mental state, health or physical condition at the time of signing.
Undue influence
Undue influence occurs when a will-maker is manipulated or coerced by another person into making a will that does not reflect their true intentions. In effect, there is pressure unduly exercised over the will-maker that overpowers their free will to make their own decisions.
Undue influence often arises when a will-maker’s capacity wavers, as their mental faculties may be less resistant to suggestion or pressure from a third party. It can occur when a person exploits their relationship with the will-maker, often resulting in the will-maker benefiting that person in their will. This pressure and coercion may be a one-off event or a long-term process. It can sometimes occur when the will-maker is reliant or dependant on the person in question for their own care and wellbeing, placing them in a particularly vulnerable and suggestable position.
Coercion and undue influence can take many forms, including flattery, threats, lies, and even blackmail in some instances.
Challenges to wills
Challenges to wills are often time-consuming, costly, and very difficult to prove without evidence. The onus of proof rests with the person challenging the validity of the will. It is the responsibility of that person to demonstrate that the testator did not have capacity at the time of signing their will, or that the will-maker’s freewill was overborne by the undue influence of another person.
The curious story of Beverley Brooker
These issues have attracted public attention recently, with investigative podcast Bronwyn by Hedley Thomas of The Australian exploring concerns around undue influence in estate planning. As part of this broader journalistic investigation, Beverley Brooker, a 71 year old woman who passed away in September 2022 after a battle with cancer, became the subject of public interest due to the unexpected circumstances surrounding her will. Prior to her passing, Beverley made significant changes to her will, leaving almost all her assets to a man who had been completing renovations to her home and with whom she had no familial relationship. He was also made executor of her will.
While no formal legal action was pursued in this particular matter, the situation raised important questions about the vulnerability of individuals when making significant decisions about their estate planning, highlighting critical issues about capacity and the potential for undue influence to sway those choices.
Key takeaways
When signing a will, it is crucial that you have the necessary capacity to understand the implications of that process and that no person is pressuring or influencing you in any way. Challenging a will is a complex and potentially costly endeavour, which has a profound effect on family members left behind. Understanding the legal process and ensuring you seek advice from a suitably qualified estate planning lawyer is crucial to ensuring that a will is valid and that future challenges can be avoided.
If you have encountered these issues and require assistance, or if you have any queries, please do not hesitate to contact our experienced Wills & Estates team who will be able to assist you.
