A Will is a legal document that outlines the distribution of a person’s assets after death and must meet specific legal requirements to be considered valid. In Queensland, a Will must be in writing, and the testator must sign the Will in the presence of two witnesses who then also sign. A Will that does not meet these legal requirements can be declared invalid.
There are also other circumstances which can render a Will invalid. For example, a Will can be challenged and varied, or even invalidated by the Court because of undue influence, fraud or forgery, or lack of testamentary capacity or testamentary intention. In these instances, the Court will then consider the evidence presented and decide based on the case’s merits. If the Court finds in favour of the individual disputing the Will, it may order that the Will be set aside or varied to reflect the deceased’s true intentions. The Court may also request that costs be paid by the estate or the party responsible for the dispute.
CIRCUMSTANCES ALLOWING A WILL TO BE CHALLENGED AND VARIED, OR INVALIDATED
1. Undue Influence
Undue influence occurs when someone exerts pressure on the person making the Will, known as the testator, to create a Will that does not reflect their true wishes and is another way the validity of a Will can be challenged. If a beneficiary, caregiver, or family member coerces the testator into making a Will that benefits them unfairly, the Will could be invalidated by a court.
2. Fraud & Forgery
Similarly, a fraudulent or forged Will can also be struck-out. A fraudulent Will is created by someone other than the testator, while a forged Will is a document that appears to be signed by the testator but is not.
3. Lack of Testamentary Capacity or Testamentary Intention
The “testamentary capacity” of the deceased is also an essential requirement for a valid Will. For a Will to be valid the testator, must have the mental capacity to understand what they are doing by executing the Will. Accordingly, a Will could be deemed invalid if the testator lacked the capacity to understand the nature and consequences of their actions at the time that they made the Will. Importantly, the testator is presumed to have testamentary capacity unless the court is presented with compelling evidence to the contrary.
Further, to be considered valid, a testator must not only have the testamentary capacity to make the Will, but the Will must also accurately reflect the testator’s expressed “testamentary intention”. The language in drafting a Will must be clear and precise, as ambiguity can lead to confusion and disputes. If the Court cannot interpret the testator’s intentions from the language used in the Will, it may be invalidated. In other words, at the time of executing the Will, not only must the testator know what they are doing, they must have intention to create the Will and its consequences.
Usually, when the validity of a Will is challenged for lack of testamentary capacity, the testator is elderly and mental frail; however, a Will can also be challenged for lack of testamentary capacity where the testator is illiterate or unfamiliar with the English language. A recent example of this is the case of the late Mr Ali Sultan, a Tasmanian property mogul who made seven Wills between 2012 and his death in 2021. The final of these Wills, made in December 2020, excluded two of Mr Sultan’s three children. Following Mr Sultan’s death, the excluded children challenged the validity of the final Will for lack of testamentary capacity and intention, alleging that their father had a poor grasp of English, and was limited in his capacity to read and understand documents written in English.
The Court heard that Mr Sultan’s son, Moe, often acted as his father’s interpreter in respect of documents. In his findings, Justice Brett genuinely doubted that Mr Sultan knew and approved of the Will’s contents. Effectively, Justice Brett found that Mr Sultan did not have the necessary testamentary capacity to execute the December 2020 Will and that the Will did not embody Mr Sultan’s testamentary intentions. Accordingly, his Honour invalidated the December 2020 Will and ruled that a previous Will made in July 2018 should be viewed as Mr Sultan’s last Will.
Seeking Legal Advice
Disputing a Will in Australia can be challenging and difficult to navigate on your own. There are strict time limits for disputing a Will in Australia, so it is essential to acting promptly and seeking legal advice. Salerno Law has an experienced team who understands the difficulties of challenging a Will and distributing a deceased estate. We are dedicated to delivering the best outcome for our clients, and you can rest assured that our team will give you the respect and individual attention you deserve. We are the human element in law.
If your case can be settled without going to court, this is usually best for everyone. To find out if alternative dispute resolution is appropriate for you case, book a consultation with a professional at Salerno Law. Call us on +61 7 5575 8011 to get in touch with our QLD office or +61 8 9169 2206 to reach our WA office.
Authors: Bernadette McShane, Steven Hodgson, & Cassi Pollock