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


David Lipke

David Lipke is a partner of our Rockhampton firm overseeing the litigation and insurance division in the firm. His experience includes work in institutional claims, workers compensation and motor accident claims.

Terry Tummon

Terry Tummon is a partner of the firm overseeing the family law division. Terry’s experience includes dealing with property settlement and litigation matters.

Robert Rooney

Robert Rooney is a partner of the firm overseeing the commercial & business, property, wills & estates division. His experience includes commercial transaction and advisory work.

Katina Perren

Katina Perren is a solicitor of the firm, Independent Children’s Lawyer and Separate Representative. Her experience includes work in custody, separation, divorce and property settlement matters.

Nicola Goodwin

Nicola Goodwin is a solicitor of Swanwick Murray Roche practicing in family law, divorce and separation matters, parenting disputes and court applications for family matters.


Choosing an executor for your Will

Choosing an executor for your Will What is an executor? An executor of a Will is a person or people who you 


Two mates gambling on horse races – constitute a partnership?

Two mates gambling on horse races – constitute a partnership? Background of the matter Judgement was given on 24 July 2020 by 


Estate Planning & Family Law – What you need to consider…

Separations and divorces can be very stressful experiences. There is a lot to think about and a lot to deal with. Sometimes 


How to get a copy of a will

Who can demand to see a copy of the last Will? When a person dies, the following people are legally entitled to 


Refusing requests for Annual Leave | Employment Law

Refusing Requests for Annual Leave The decision of the Fair Work Commission in the case of Adriana Stevens v Horsley Park Supermarket Pty 


Australian worker won landmark privacy case against employer after he was fired for refusing to use a fingerprint scanner at work

The Case & Decision An Australian employee (Jeremy Lee) won an action against his employer after he was fired for refusing to 


New Drone Laws

New Licensing and Registration Requirement From 1 July 2019: before a pilot can operate any drone weighing more than 250 grams, the 


How much Child Support should I receive?

Calculating Child Support The Child Support (Assessment) Act 1989 (Cth) imposes an obligation on a parent to maintain their children in the form of child 


What is an Enduring Power of Attorney?

Enduring power of attorney An enduring power of attorney is a formal document giving another person the authority to make personal, health 


Property Settlements | Valuing Property

Property Settlements | Valuing Property Agreement on property value… If the parties agree on values for an asset or debt, the Court 


What happens if you die without a Will?

Introduction In this article, we look at what happens if you pass away without a Will or, perhaps more commonly, what you 


Privacy | Recording Devices, Telephone Calls and Private Conversations

Introduction The recording of conversations in the workplace, school yard or family meetings now seems almost common place. The purpose of this 


Want free information & updates in the law? Subscribe to our mailing list today!