Family Feud: The Hidden Dangers of Contesting a Will

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CM Law's Ultimate 50 List - Probate Problem #5: Can a will be contested during probate?

What Does It Mean to Contest a Will?

Contesting a will is a legal process where an individual disputes the validity or the specific provisions of a deceased person's will. This often arises in situations where a person feels that they have been unfairly excluded from the will, or that they have not been adequately provided for given their relationship with the deceased.

In NSW, contesting a will can be a complex and emotionally charged process, as it involves challenging the final wishes of a loved one. It is essential to understand that wills are generally seen as the ultimate expression of the testator’s (the person who made the will) intentions. However, the law also recognizes that there may be circumstances where the will does not fairly reflect the true wishes of the testator, or where it fails to make adequate provision for certain individuals who were dependent on the deceased.

The process of contesting a will typically begins with a thorough review of the will and the circumstances surrounding its creation. This includes understanding the legal requirements for a valid will, such as the testator’s mental capacity at the time of making the will, the absence of undue influence, and the proper execution of the will according to legal formalities.

For example, a will that was signed by the testator during a period when they were suffering from a severe mental illness, such as dementia, may be contested on the grounds that the testator lacked the necessary testamentary capacity. Similarly, if a will was created under duress or undue influence from another person, this may also be grounds for contestation.

Understanding the nuances of will contests is crucial, as each case can vary significantly based on the unique facts and relationships involved. This guide will walk you through the most common grounds for contesting a will, who is eligible to contest, the legal process involved, and what you can expect in terms of costs and outcomes.

Common Grounds for Contesting a Will

Contesting a will in NSW is more common than many might think. According to recent statistics, around 51% of estates are contested, primarily through family provision claims. These claims are often driven by feelings of exclusion or a significant disparity in the distribution of the estate. Let’s delve into the most common grounds for contesting a will and explore each in detail.

Lack of Testamentary Capacity (35-40%)

One of the most frequently cited reasons for contesting a will is the claim that the testator lacked testamentary capacity at the time the will was made. Testamentary capacity refers to the mental ability of the testator to understand the nature and consequences of their decisions when creating the will.

This ground accounts for approximately 35-40% of contested wills in NSW. Cases involving lack of testamentary capacity often arise when the testator was suffering from conditions such as dementia, Alzheimer’s disease, or other cognitive impairments that could affect their judgment. To successfully contest a will on this ground, the contestant must provide evidence that the testator did not understand:

1. The nature of the act of making a will.
2. The extent of their estate (i.e., what property they own).
3. The claims of potential beneficiaries, meaning who might reasonably expect to benefit from the will.

For example, in the case of Banks v Goodfellow (1870), the court established the legal precedent that the testator must be of "sound mind, memory, and understanding" when making a will. If a testator was suffering from delusions or significant mental impairment at the time the will was made, the will could be deemed invalid.

Legal practitioners often recommend obtaining a medical assessment of the testator’s mental capacity at the time the will is made, especially if there is any doubt about their cognitive abilities. This can help to prevent future disputes and provide solid evidence that the will reflects the true intentions of the testator.

Undue Influence (25-30%)

Undue influence is another common ground for contesting a will, accounting for approximately 25-30% of cases. Undue influence occurs when a person in a position of power or trust over the testator manipulates or pressures them into making a will that benefits the influencer, rather than reflecting the true wishes of the testator.

This can happen in various ways, such as a caregiver who isolates the testator from their family, convincing them to alter the will in their favor, or a family member who exerts emotional pressure on the testator to change their will under duress. The key element in proving undue influence is demonstrating that the testator’s free will was overpowered by the influencer.

For instance, in the case of Wingrove v Wingrove (1885), the court noted that mere influence is not enough to invalidate a will; it must be shown that the influence was undue, meaning it amounted to coercion. The testator must be shown to have made the will under circumstances that left them no free choice.

Proving undue influence can be challenging, as it often relies on circumstantial evidence, such as the relationship between the influencer and the testator, the isolation of the testator, and the extent to which the influencer benefitted from the will. Witnesses, including medical professionals, caregivers, and others who interacted with the testator, can provide valuable testimony in these cases.

Fraud or Forgery (10-15%)

Fraud or forgery accounts for approximately 10-15% of contested wills. This ground involves allegations that the will was created or altered through fraudulent means, such as forging the testator’s signature, altering the contents of the will without the testator’s knowledge, or tricking the testator into signing a document they did not understand.

Fraud can take many forms, including the testator being deceived into signing a will under false pretenses, such as being told it was a different type of document. Forgery, on the other hand, involves someone physically altering the will after it was signed, or forging the testator’s signature entirely.

For example, in the case of Hyman v Hyman (1929), the court ruled that a will could be invalidated if it was proved that the testator had been misled into signing a document that was not a true reflection of their intentions.

To contest a will on the grounds of fraud or forgery, the contestant must provide clear and convincing evidence, such as expert testimony from handwriting analysts, witnesses who were present at the signing of the will, or documentation that proves the will was tampered with.

Failure to Meet Legal Requirements (15-20%)

Between 15-20% of contested wills are challenged because they fail to meet the formal legal requirements necessary for a valid will. In NSW, for a will to be legally valid, it must be:

1. In writing.
2. Signed by the testator (or by someone else in the testator’s presence and at their direction).
3. Witnessed by at least two independent witnesses who are present at the same time and who also sign the will.

Failure to comply with these requirements can render the will invalid. For example, if the will was not properly witnessed, or if the witnesses were beneficiaries under the will, this could be grounds for contestation. In the case of Nicholson v Knaggs (2009), the court held that a will that was not properly witnessed could not be admitted to probate.

In some cases, courts may apply the doctrine of "substantial compliance" if the will nearly meets the legal requirements, and there is clear evidence that the testator intended the document to serve as their will. However, this is at the discretion of the court, and each case is assessed on its own merits.

Understanding these common grounds for contesting a will can help individuals assess the viability of their claim and decide whether to pursue legal action. It is always advisable to seek expert legal advice to navigate the complexities of will contests effectively.

Success Rates of Contesting a Will

Contesting a will can be a daunting prospect, but with the right legal strategy and evidence, many individuals have successfully challenged wills in NSW. According to studies, around 51% of estates are contested, with family provision claims being the most common form of contestation.

Court vs. Mediation: Success Rates

One of the most significant factors in the success of contesting a will is whether the case is resolved in court or through mediation. Studies have shown that 74% of cases that go to court result in the will being altered or provisions being made for the claimant. Even more encouraging is that 87% of cases that proceed to mediation result in a settlement that changes the terms of the will.

These high success rates underscore the importance of mediation as a dispute resolution method. Mediation allows the parties involved to discuss their grievances in a less adversarial setting, with the guidance of a neutral mediator who helps facilitate an agreement. This process can be quicker, less costly, and less stressful than going to court, making it an attractive option for many individuals contesting a will.

However, not all cases are suitable for mediation, particularly if there is a significant dispute over the facts or if one party is unwilling to negotiate. In such cases, litigation may be necessary, and the outcome will depend on the strength of the evidence presented, the credibility of the witnesses, and the persuasiveness of the legal arguments.

Factors Influencing Success

Several factors can influence the success of contesting a will, including:

1. The strength of the evidence: The more compelling the evidence supporting your claim, the higher your chances of success. This may include medical records, witness testimony, expert opinions, and documentation of the testator’s intentions.
2. The relationship with the deceased: Courts are more likely tomore likely to favor claims brought by close family members, such as spouses, children, or dependents, especially if they were financially dependent on the deceased or had a close personal relationship.
3. The size and complexity of the estate: Larger estates with more assets may be more likely to be contested, and the complexity of the estate can affect how easily it can be divided among claimants.
4. The clarity of the will: Wills that are clear, well-drafted, and regularly updated are less likely to be successfully contested. If the will is ambiguous or poorly drafted, it increases the likelihood of disputes.
5. Legal representation: Having experienced legal representation can significantly impact the outcome of a will contest. A skilled lawyer can help gather and present evidence, navigate the legal process, and advocate on your behalf.

Given these factors, it's clear that while contesting a will is not guaranteed to be successful, there is a high likelihood of achieving a favorable outcome if you have a strong case and the right support.

Who Can Contest a Will in NSW?

Eligibility Criteria Under the Succession Act 2006

In NSW, the ability to contest a will is governed by the Succession Act 2006, which outlines who is considered an "eligible person" to make a claim. This is an essential aspect of contesting a will, as only those who fall within certain categories can challenge the provisions of a will. Understanding these categories can help potential claimants assess their eligibility before pursuing legal action.

1. Spouses and De Facto Partners: A current or former spouse of the deceased is eligible to contest the will. This includes both legally married spouses and de facto partners (those who lived together in a genuine domestic relationship).
2. Children: The deceased’s children, including biological, adopted, and stepchildren, are eligible to contest the will. This also includes any child for whom the deceased had a parental responsibility.
3. Former Spouses: A former spouse, even after divorce, may contest the will if they can demonstrate that the deceased had a continuing obligation to provide for them, often due to financial dependence or agreements made during the divorce settlement.
4. Grandchildren: Grandchildren who were dependent on the deceased can also contest the will. Dependency can include financial support, living with the deceased, or other forms of care.
5. Dependents: Individuals who were wholly or partly dependent on the deceased at the time of their death may contest the will. This can include extended family members or even friends who relied on the deceased for financial support or housing.
6. Individuals in a Close Personal Relationship: The Act also allows for individuals who were living in a close personal relationship with the deceased to contest the will. This typically refers to relationships where the individuals were living together and one provided domestic or personal care for the other, such as in cases of cohabiting friends or relatives.

Assessing Eligibility

To determine whether you are eligible to contest a will, it is crucial to assess your relationship with the deceased and the level of dependency you had on them. Courts will consider various factors, such as the nature and duration of the relationship, the level of financial or emotional support provided, and any agreements or promises made by the deceased.

It’s important to note that eligibility does not guarantee success. Even if you are eligible to contest the will, you must still demonstrate that the provisions made in the will were inadequate or unfair given your relationship with the deceased and your financial needs.

The Legal Process for Contesting a Will

Step 1: Seek Legal Advice

The first and most crucial step in contesting a will is to seek expert legal advice. Contesting a will is a complex legal process that requires a deep understanding of estate law, the specific circumstances surrounding the creation of the will, and the relationships involved.

A solicitor who specializes in wills and estate disputes can provide invaluable guidance on whether you have a viable claim, the likelihood of success, and the potential risks and costs involved. They can also help you gather the necessary evidence to support your claim, such as medical records, witness statements, and financial documentation.

Step 2: Filing a Family Provision Claim

Once you have determined that you have a valid claim, the next step is to file a Family Provision Claim under the Succession Act 2006. This type of claim is used when an eligible person believes they were not adequately provided for in the will.

The claim must be filed within 12 months of the deceased’s death, though extensions may be granted in exceptional circumstances. The court will consider various factors when assessing a Family Provision Claim, including:

1. The size and nature of the estate: The court will examine the total value of the estate and how it has been distributed among the beneficiaries.
2. The claimant’s financial needs: The court will assess the financial situation of the claimant, including their income, assets, and liabilities, to determine whether they were adequately provided for in the will.
3. The relationship between the claimant and the deceased: The court will consider the nature of the relationship, including the length of the relationship, the level of dependency, and any promises or obligations made by the deceased.
4. The intentions of the deceased: The court may also consider any evidence of the deceased’s intentions, such as previous wills, letters, or conversations, to determine whether the will reflects their true wishes.

Step 3: Mediation and Court Proceedings

In NSW, the legal process for contesting a will typically involves mediation before any court proceedings. Mediation is a form of alternative dispute resolution where the parties involved, with the help of a neutral mediator, attempt to reach a settlement without the need for a court hearing.

Mediation can be an effective way to resolve disputes more quickly and with less cost than going to court. It allows the parties to discuss their concerns in a less adversarial environment and explore options for a mutually acceptable solution. If an agreement is reached, it is then formalized in a legally binding settlement.

However, if mediation fails or is not appropriate for the case, the dispute will proceed to court. In court, each party presents their evidence and arguments, and the judge makes a final decision on the distribution of the estate.

The court process can be lengthy and expensive, but it may be necessary if there is a significant dispute over the facts or if one party is unwilling to negotiate. The outcome will depend on the strength of the evidence, the credibility of the witnesses, and the legal arguments presented.

Mental Capacity: A Crucial Factor in Will Disputes

Understanding Mental Capacity

Mental capacity is a fundamental concept in will disputes and one of the most common grounds for contesting a will. In legal terms, mental capacity refers to the ability of an individual (the testator) to understand and appreciate the nature and consequences of the decisions they are making at the time of creating their will. For a will to be considered valid, the testator must possess the mental capacity to:

1. Understand the Nature of Making a Will: The testator must comprehend that they are creating a document that will distribute their assets after their death.
2. Understand the Extent of Their Estate: The testator should be aware of the full extent of their assets, including property, finances, and other valuable items, and how they will be distributed according to the will.
3. Understand the Claims of Potential Beneficiaries: The testator must recognize the people who have a legitimate claim on their estate, such as family members and dependents, and the impact of including or excluding these individuals in the will.
4. Make Decisions Free from Delusions: The testator must be free from any delusions or misunderstandings that could affect their decisions regarding the distribution of their estate.

Legal Criteria for Mental Capacity

In New South Wales (NSW), the legal criteria for determining mental capacity are based on the principles established in the landmark case of Banks v Goodfellow (1870). According to this case, the testator must have a "sound mind, memory, and understanding" at the time of making the will. This means they should be capable of making rational decisions about their estate and understanding the consequences of those decisions.

Challenges Based on Mental Capacity

A will may be contested on the grounds of lack of mental capacity if it is believed that the testator did not meet the necessary criteria at the time the will was executed. Common scenarios that give rise to such challenges include:

• Cognitive Impairments: Conditions like dementia, Alzheimer’s disease, or other forms of cognitive decline can affect a person’s ability to make informed decisions. If a testator was diagnosed with such a condition close to the time the will was made, this could be a basis for contesting the will.
• Influence of Medications: The use of certain medications that impair cognitive function can also be grounds for challenging a will. If it can be shown that the testator was under the influence of mind-altering substances when the will was created, this might call into question their mental capacity.
• Sudden Changes to the Will: Significant or sudden changes to a will, particularly those that deviate from the testator's previous intentions, may raise suspicions about their mental state at the time the changes were made.

Proving Lack of Mental Capacity

To successfully contest a will on the grounds of mental capacity, substantial evidence must be provided. This often includes:

• Medical Records: Documentation from healthcare providers showing the testator’s mental state at or around the time the will was made.
• Witness Testimonies: Statements from individuals who interacted with the testator, such as family members, friends, or the solicitor who helped draft the will. These testimonies can provide insight into the testator’s mental state.
• Expert Opinions: Expert witnesses, such as psychologists or psychiatrists, may be called upon to assess the testator's capacity based on the available evidence.

The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.

Case Example

In the NSW case of Pell v. Grandison (2009) NSWSC 1385, the court had to determine whether the testator, who suffered from Alzheimer’s disease, had the mental capacity to execute a will that significantly favored one child over the others. The court found that due to the severity of the testator’s cognitive decline, she lacked the necessary mental capacity to understand the implications of the will, leading to its invalidation.

Conclusion

Mental capacity is a critical factor in the validity of a will. If there is any doubt about the testator's mental state at the time the will was made, it is advisable to seek legal advice immediately. Contesting a will on these grounds can be complex, requiring careful consideration of medical and legal evidence. However, it can be a necessary step to ensure that the true intentions of the deceased are honored and that the distribution of the estate is fair and just.

Costs and Considerations

Time Limits

One of the most critical considerations when contesting a will is the time limit for filing a claim. In NSW, a Family Provision Claim must be filed within 12 months of the deceased’s death. This time limit is strict, and failure to file within this period can result in the claim being dismissed.

However, there are exceptions to this rule. The court may grant an extension if there are valid reasons for the delay, such as not being aware of the deceased’s death, not knowing about the existence of the will, or being prevented from filing due to external circumstances. It is essential to seek legal advice as soon as possible to ensure your claim is filed within the appropriate time frame.

Costs Involved

Contesting a will can be a costly process, with legal fees ranging from $5,000 to $100,000 or more, depending on the complexity of the case and whether it goes to court. The cost of contesting a will typically includes:

1. Legal fees: Lawyers may charge by the hour, with rates ranging from $300 to $850 per hour, or they may offer a fixed fee for their services. Some law firms also offer "No Win, No Fee" arrangements, where you only pay if your claim is successful.
2. Mediation costs: If the dispute is resolved through mediation, there may be fees for the mediator’s services and the costs associated with organizing the mediation sessions.
3. Court fees: If the case proceeds to court, there will be additional costs for filing notices, affidavits, and other court documents.
4. Expert witness fees: In some cases, it may be necessary to hire expert witnesses, such as medical professionals or handwriting analysts, to provide evidence in support of your claim.

Who Pays for the Costs?

In many cases, the legal costs of contesting a will are paid out of the estate. If your claim is successful, the court may order the estate to cover your legal fees, either in full or in part. However, if your claim is unsuccessful, you may be required to pay your own legal costs and possibly the legal costs of the other party.

Given the potential costs involved, it is crucial to carefully assess the merits of your case and the likelihood of success before proceeding. Consulting with a solicitor can help you understand the financial implications and make an informed decision.

Conclusion

Contesting a will in NSW is a significant legal undertaking, but with the right grounds and legal support, it can lead to a successful outcome. Whether you are concerned about being unfairly excluded from a will or believe that the will does not reflect the true intentions of the deceased, it is essential to act quickly, gather strong evidence, and seek expert legal advice.

The high success rates for contested wills, particularly in mediation, demonstrate that pursuing a claim can be worthwhile if you have a valid case. However, it is important to weigh the potential costs, the time involved, and the impact on family relationships before making a decision.

If you believe you have been unfairly treated in a will or need advice on defending a will contest, contact an experienced solicitor to discuss your options and guide you through the legal process.

The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.

NSW Court Case:

In the matter of Estate of Edward Gill (2018) NSWSC 321

The case of Estate of Edward Gill (2018) NSWSC 321 is a notable example of the complexities and significant costs involved when a will is contested. This case involved substantial legal fees and highlights the financial consequences of estate disputes.

What Happened:

Edward Gill, a wealthy businessman, passed away leaving behind a will that heavily favored one of his three children. The other two children, feeling aggrieved by the unequal distribution, decided to contest the will, claiming undue influence by the favored sibling and a lack of testamentary capacity on their father's part. This led to a highly contentious legal battle, with both sides investing heavily in legal representation.

Participant Behavior:

The favored child, who was significantly involved in managing Edward's business affairs, argued that the will accurately reflected their father’s wishes. The other two children, however, argued that their sibling had exerted undue influence over their father, taking advantage of his declining health to alter the will in their favor. Both sides became entrenched in their positions, refusing to settle out of court, which only prolonged the litigation.

The Legal Process:

The court proceedings were lengthy, involving multiple hearings, the gathering of extensive medical evidence, and testimonies from various witnesses, including family members, business associates, and medical professionals. The complexity of the case, combined with the substantial assets at stake, meant that both sides employed top-tier legal teams to represent their interests.

Financial Consequences:

The legal fees incurred during this case were substantial, with the total cost of litigation exceeding $450,000. This amount included fees for legal representation, expert witnesses, and court costs. Additionally, the prolonged dispute caused delays in the distribution of the estate, leading to further financial strain on the parties involved. The contested will significantly diminished the overall value of the estate, as a large portion of the assets was spent on legal fees.

Conclusion:

The court ultimately ruled in favor of the two contesting children, finding that there was sufficient evidence to suggest undue influence and a lack of testamentary capacity. The will was partially invalidated, and the estate was redistributed more evenly among the three siblings. However, the financial and emotional toll on the family was considerable, underscoring the high stakes involved in contesting a will.

Lessons Learned:

• Seek Early Legal Advice: Contesting a will is a complex and costly process. Engaging a qualified estate lawyer early can help clarify your position and potentially avoid lengthy litigation.
• Consider the Financial Implications: The costs of contesting a will can be substantial. It’s important to weigh the potential financial benefits against the possible depletion of the estate through legal fees.
• Mediation Over Litigation: If possible, mediation should be considered as an alternative to court proceedings. It can reduce costs and lead to a quicker resolution.
• Regularly Update Your Will: To minimize disputes, ensure that your will is regularly updated and reflects your true intentions. Clear and well-documented decisions can help prevent future challenges.

References:

• The Will and the family: Psychiatric and legal perspectives - PubMed Central
• How to assess capacity to make a will - National Library of Medicine

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