Challenging a will – what has to be proved

Posted on Nov 22, 2018 by Samantha Miller   |   Categories: Wills & Estates

When challenging the validity of a will fraud, undue influence or lack of knowledge can result in a successful challenge to a will. These factors can result in the whole will, sections of the will or just one word being struck out.

It is usual for a court to assume that a will in a valid form is valid. However, if the Courts suspicion’s are aroused as to this assumption then certain elements must be proved.

First the person wishing to prove the will is valid must show that all the elements of a valid will are in existence i.e. it was properly executed by a competent testator.

The onus then shifts to the person wishing to challenge the will to show some vitiating factor such as extreme age, physical or metal incapacity or illness or the possibility of undue influence being exercised by a person having motive or opportunity. This is often referred to as the ‘doctrine of suspicious circumstances’ an example of which is where a beneficiary had a hand in the drafting of the will.

If the doctrine of suspicious circumstances is invoked then the person wishing to prove the will needs to remove that doubt and prove that there is no evidence that the testator was affected. If this is successful then the challenger must satisfy the court that undue influence or fraud took place.