Validity of a will

Validity of a will article - Arrow White

The Validity of a Will: Suspicious Circumstances and Undue Influence

A person who creates a will (Testator) must know and approve of all of the contents inside of that will at their own free will.

In determining whether a Testator has testamentary capacity, indications of suspicious circumstances or undue influence may be impactful.

The Doctrine of “Suspicious Circumstances”

Suspicious circumstances may come in many forms but typically include situations where a Testator has been influenced to insert provisions into their will which may not have been at their own free will.

This may include, for example:

  1. A beneficiary has participated in the will drafting process and has encouraged the Testator to insert, objectively viewing, an unreasonable gift which the Testator would not ordinarily have given;
  2. The Testator was relying on a carer who suddenly receives a substantial benefit under their will;
  3. The Testator did not speak English and their translator has suddenly received a substantial benefit under the will; or
  4. The Testator did not give instructions to a benefit that is under their will.

When a will is drafted, there is a presumption that there are no suspicious circumstances. It is the requirement of the person applying for probate of the will to contest that the will maker had testamentary capacity to make the will and that they were fully aware of the contents of their will. 

It is important to note that if it is found that suspicious circumstances do exist, the doctrine of suspicious circumstances does not automatically render the entire will invalid. Typically, the provisions of the will that do contain suspicious clauses will be removed before probate.

Undue Influence

Undue influence in the process of will making will impact testamentary capacity and may render parts of a will invalid.

Undue influence is a situation where the Testator has been strongly coerced by an influential party to draft their will in a certain way which goes against the Testator’s wishes.

Situations where undue influence has occurred may include:

  1. Where the Testator was in their last hours of life and was strongly persuaded to include a substantial gift to a beneficiary under the will;
  2. The Testator was suffering from a medical condition, such as dementia, and were strongly relying on the advice and care of a beneficiary who has persuaded the Testator to insert provisions that benefit them.

The evidence needed to prove undue influence must be clear, compelling and a matter of fact. The evidence must suggest that the influence was a strong coercion not just somewhat influential. It is up to the person contesting the will to prove that undue influence existed in the drafting of a will. 

Similarly, proof of undue influence may not render the entire will invalid but may lead to the severance of a beneficiaries share.

Disclaimer: This publication is intended for general and informative use only and is not to be relied upon as professional financial or legal advice.

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