Suspicious Will-Making: When Should You Challenge The Validity?

Challengers to the validity of a Will sometimes cite “suspicious circumstances” as a reason to discredit a Will and the intentions of the testator. But what does this mean? And how do the courts assess whether the circumstances are sufficiently suspicious?

Valid Wills

As a general rule, there are three conditions that make a valid Will:

• The Will was duly executed (that is, it complied with the formalities of the Succession Law Reform Act);
• The testator knew of and approved the contents in the Will; and
• The testator had testamentary capacity.

If one of these components is missing, or is questionable, it may be appropriate to bring a court application challenging the validity of the Will.

Suspicious circumstances

The presence of suspicious circumstances surrounding the making of a Will is not a stand-alone ground to challenge a Will; however, there are circumstances that may impact on which party has the legal burden of proving testamentary capacity and/or knowledge and approval of the Will. For example:

• Whether the testator was experiencing any physical or mental impairment/deterioration at the time the Will was signed;
• Whether the Will constitutes a significant change from previous Wills;
• The factual circumstances surrounding the preparation and execution of the Will;
• Whether a beneficiary was instrumental in the preparation of the Will;
• Whether the testator has been isolated from family or friends;
• The extent to which the testator is dependent on any of the beneficiaries;
• Whether the testator is unwilling to provide full information to a solicitor in relation to the assets, liabilities or family circumstances; and
• Whether the Will makes testamentary sense.

Undue influence

Undue influence is another possible ground to challenge a Will, if you believe your loved one was influenced into changing their Will by another family member or a friend.

The burden to prove undue influence is on the person alleging it, and it is a high threshold to meet. Ultimately, a testator may be influenced by appeals to affection, gratitude or pity, as long as the influence does not rise to the level of actual coercion, such that the influencer overpowers the free will of the testator.

Fraud

Finally, you can also challenge a Will based on allegations of fraud or forgery, but these challenges are rare.

Next steps

If you are unsure about whether you should challenge a Will, contact our Wills and Estates Group for more information.