I would like to challenge my fathers Will on the grounds of ‘undue influence’“We each want to provide for own children”
I would like to challenge my fathers Will on the grounds of ‘undue influence’. His new wife of nine months had him change his Will in the last three months of his life when he was very weak and sick. Do I have a case?
From the information provided you have a case to challenge your father’s Will on the grounds that his new wife exerted undue influence on him to change his Will.
When you are challenging a Will on the grounds of undue influence you need to show the Court that your father was coerced and pressured to such an extent by his new wife that it overpowered his wishes.
Based on numerous Court decisions on undue influence the fact that your father was very weak and sick at the time of changing his Will means that very little pressure may have been needed by his new wife to coerce him to change his Will.
In a recent decision of the Supreme Court the Court was required to consider whether the deceased had produced a later Will as a consequence of undue influence by her brother-in-law. In this case the deceased had made two Wills during her lifetime, one in 1999 and one in 2004 which benefited her brother-in-law. The evidence before the Court showed that at the time of making the 2004 Will the deceased had been:
- Threatened by her brother-in-law with court action if she refused to leave a residential property to him in her Will.
- Continually harassed by her brother-in-law about the residential property;
In addition, it emerged from the evidence that the deceased’s brother-in-law had instructed the solicitor who drafted the 2004 Will and taken her to sign the Will. At the time of signing the Will the deceased’s brother-in-law was present and no opportunity was given to the deceased to seek confidential and independent legal advice.
The Court found that the pressure exerted by the brother-in-law on the deceased caused her to change her Will, for the sake of a quiet life, and therefore her free judgment, discretion and wishes were overborne. In essence, the deceased’s brother-in-law exerted undue influence on the deceased.
Based on this finding of undue influence the Court ordered that Probate be granted for the 1999 Will.
To be successful in challenging a Will for undue influence you need an expert Wills and Estates lawyer experienced in what evidence is needed to prove undue influence to the Court. This area of the law is complex and you need to act quickly so your father’s new wife does not have time to obtain a grant of Probate for your father’s later Will.
Graeme Heckenberg is an expert Wills and Estate lawyer.
Call today for a an appointment closer to home on 9221 0341
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