Challenging a Will: A Person Lacked Capacity
If a person lacked capacity to make their Will at the time of it’s creation, then the Will is not valid.
If there has been a Grant of Probate granted, but you believe the deceased lacked capacity, or you have been inadequately provided for during the estate administration process, we are able to assist in the litigation to challenge the Will.
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Challenging a Will
There are two main ways in which a person can challenge a person’s last will and testament and estate administration, either the person lacked capacity to make that will or, if they had capacity, make a family provision claim.
It is increasingly common for people to claim that a deceased person lacked capacity to make a Will, particularly in circumstances where those people were beneficiaries under an earlier Will but have had their entitlement reduced or completely removed from a subsequent Will.
Frequently, there is a valid reason for a Deceased to do this as relationships change over time but with people now living longer, it is possible the Will maker suffered from a disease such as Alzheimer’s disease or dementia and did not have capacity when making their Will.
1. What is Testamentary Capacity
The classic definition of “testamentary capacity” that the Will maker:
(a) understand the nature of the will and its effects;
(b) understand the extent of the property the will maker is disposing of in the will;
(c) comprehend and appreciate possible claims to the estate which he ought to give effect; and
(d) not have any mental disorder influence the disposing of the estate in a way which the Will maker would not have done if of sound mind.
It is worth noting that many people who have dementia or other impairments can go through phases where they are completely lucid and have testamentary capacity and other phases, maybe only a few hours later, where they do not have capacity, such as being delusional or confused as to the year, their family or other matters.
2. When does a Person Lack Capacity
Factors the court will consider in determining if a person had testamentary capacity include:
(a) The nature of the will, whether it is simple or complex;
(b) Terms in the will, whether some terms are irrational;
(c) The exclusion of people who would have a claim on the estate;
(d) Extreme age or sickness of the testator. It must be of such an extent that the illness or age affected mental faculties, it is not enough that they are just very ill or old; and
(e) Undue influence of a person who stands to gain from the will.
The burden of proof is on a person who is challenging the will to show the deceased lacked capacity. There is a presumption where a will is formally executed, that the deceased had testamentary capacity.
3. Undue influence
Undue influence of a person on the Will maker is where a person exerts pressure of whatever character, whether acting on the fears or the hopes, so as to over-power the volition of the will maker. This will include situations where the Will maker cannot resist threats, unable to assert themselves to a person’s influence or where the Will maker gave in just for the sake of peace and quiet or social discomfort. To suceed in a claim of undue influence on a Will maker, you must establish:
(a) the person had the capacity to influence the Will maker;
(b) that influence was exercised and undue; and
(c) that influence caused the Will maker to make a Will which it would not have been without the undue influence.
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Perth challenge Will Lawyers FAQ
A will can be challenged on several grounds, including lack of testamentary capacity (the person making the will was not of sound mind), undue influence (the person was coerced or pressured into making the will), improper execution (the will was not signed or witnessed correctly), or fraud. Additionally, a will can be contested if a beneficiary believes they were unfairly left out or inadequately provided for.
If you want to read more detail see more on the WA legal Aid site.
Typically, only those with a valid interest in the estate can challenge a will. This includes beneficiaries named in the will, people who were beneficiaries under a previous will, or those who would have inherited under intestacy laws if the will did not exist. In some jurisdictions, certain family members, such as spouses, children, or dependants, may also have the right to contest a will.