Swanwick Murray Roche Lawyers

74 Victoria Parade, Rockhampton QLD 4700   •   (07) 4931 1888   •   SERVICE PORTAL

Overturn a Will

On what grounds can you overturn a Will?

There are many reasons why you might seek to overturn a Will. They include:

  • the deceased person did not have testamentary capacity when they signed the new Will;
  • the deceased person was unduly influenced when they wrote and signed their new Will;
  • the deceased person did not write the Will and it is a fraudulent creation;
  • the Will was not signed and created in accordance with the law.

What happens if you overturn a Will?

If a Will is found to be invalid then, depending on the order of the court, the previous Will may be accepted as the last Will and Testament or the intestacy laws may apply.

The previous Will or even the intestacy laws may provide drastically different gifts than what is provided for in the Will.

How would you prove that someone didn’t have testamentary capacity when they signed the Will?

To overturn a Will because someone doesn’t have testamentary capacity basically means that you need to show that they did not have medical or legal capacity to sign a Will. This could be as simple as the person having advanced dementia or as complex as they did not understand that the document they were signing was their last Will.

This can be determined from one or a combination of the following factors:

  • anecdotal evidence (from family and friends) of the deceased person’s behaviour around the time they signed the Will;
  • hospital and doctor’s records;
  • testimony about the deceased’s state of mind from people who say the deceased person preparing their Will;
  • medication records;
  • cause of death notes on death certificate;
  • consistency of Will makers wishes and whether they differed from previous wishes dramatically;
  • whether the Will maker’s wishes were logical and sound;
  • many other factors.

How would you know if someone was unduly influenced to sign their Will?

Undue influence can be quite simple to prove. For example, being forced to sign a new Will under threat of violence is a clear case of undue influence. However, some cases of undue influence can be more difficult to identify and establish. Sometimes, it comes down to piecing all of the evidence together and presenting it to the court for an ultimate determination.

No two cases of undue influence are the same. However, some common situations of undue influence include:

  • younger people starting relationships with older people influencing them to change their Wills to leave their estate to them;
  • a person cutting off other people (such as family) from seeing the Will maker and poisoning the Will maker against the other people.

Signs of undue influence could include:

  • radical differences between previous Wills and the new Will;
  • the new Will being paid for by another person;
  • the older person being isolated from their other friends and family by one or a few people;
  • the older person struggling physically/mentally and being heavily reliant on one family member;
  • instances where older person has caved to extreme pressure or influence;
  • someone attempting to locate the Will;
  • a new person in the Will maker’s life or the heavy presence of someone in the final stages of the deceased’s life where they may not have been before;
  • someone else organising the Will maker’s Will;
  • someone else writing the Will maker’s Will and having them sign it;
  • any other signs.

How would you know if a Will was fraudulently made?

Some of the factors involved in identifying a fraudulently made Will include:

  • evidence (or lack thereof) from witnesses who saw the Will maker sign the Will;
  • evidence about whether the signature matches other examples of the Will maker’s signature;
  • in some cases, the facts surrounding the signing including who organises the Will, who wrote the Will, computer document evidence;
  • if the Will maker was in a care facility, evidence of the signing taking place including other people who may have seen or heard things.

How can you show that a Will was not signed or properly made in accordance with Qld law?

There are some formal requirements that most Wills need to meet in order for that Will to be valid. These include (but are not limited to):

  • A Will must be in writing – this includes many modes for representing or reproducing words. In The Estate of Slavinski, a will written on the wall of a house was admitted to probate. In Kell v Charmer, a Will written partly in code was admitted to probate;
  • A Will must be signed by the will maker or someone else at their direction and in their presence.
  • A Will must be signed in the presence of 2 or more witnesses – this requirement has somewhat been relaxed but it is, in my view, still very important to have 2 witnesses present at all times during the signing.
  • The signature must be made or acknowledged by the Will maker.
  • The signature must be made with the intention of executing the Will.

Even if a Will does not strictly meet these requirements (and others), it may not necessarily be the case that it is invalid. If in doubt, seek advice from us.

Contact us to discuss whether you can overturn a Will

Contact us as follows:

  • call 07 4931 1888
  • email enquiries@smrlaw.com.au
  • visit us at 74 Victoria Parade, Rockhampton, Qld
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