Experts in Wills and Estates

Contesting a Will due to Coercion and Undue Influence

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Contesting a Will on the grounds of undue influence can be successful as long as you have absolute evidence that some form of coercion took place!

The majority of cases alleging undue influence over the deceased when making their Will, have fallen down when it came to providing concrete evidence to the Court that the deceased had been subject to coercion.

The successful undue influences cases are those in which the legal team running the case have thoroughly gathered and collated concrete evidence to prove to the Court the existence of coercion. If you believe that you have grounds to challenge a Will for undue influence, you need to ensure that your legal team is an expert in this area and has the experience and knowledge to know what evidence is required to prove undue influence.

The problems of not having absolute evidence that some form of coercion took place were highlighted in the recent Supreme Court decision of Gray v Hart & Ors [2012] NSWSC 1435. In these proceedings the deceased’s closest relatives were her two nieces and two nephews to whom she was not close. Her Estate was estimated to be worth more than $12.5 million. In 1996 the deceased had made a Will giving her estate to one of her nieces. In 2005 the deceased made another Will leaving the whole of her Estate to her neighbours. Her niece disputed this later Will on a number of grounds, one of them being that the deceased was acting under the undue influence of her neighbours at the time of making her later Will such that the Will was of no legal force. The Court stated that before a Will can be refused on the ground of undue influence it must be shown that the will of the deceased was overborne, that is, that the deceased did not intend and desire the disposition, but was coerced into making it.

The Court found that if a person writes or prepares a Will for another under which they take a benefit then this will excite the suspicion of the Court particularly if the gift is in favour of a person who had no special claim on the deceased’s Estate. In these circumstances the person will be required to show the ‘righteousness of the transaction’ to dispel any suspicion that the deceased did not know and approve of the contents of their Will.

In this case the deceased’s neighbours were instrumental in obtaining the services of a solicitor for the deceased and arranging for her to be medically examined to show she had testamentary capacity to make a Will.

The Court found that, despite these circumstances, there was not enough evidence to prove that the Will was made in ‘suspicious circumstances’ holding that the deceased knew and approved of the contents of her 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 engage an expert legal team well versed and experienced in these types of Will disputes.

Graeme Heckenberg is an expert Wills and Estate lawyer. If you are living on the Northern Beaches and surrounding Peninsula and need help and advice in a Will dispute or Estate matter, call for a consultation.

Call today for a an appointment closer to home on 9221 0341

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