In the wake of an unfortunate passing of a loved one, it is becoming more common for disputes to be raised regarding a Will, particularly where an aggrieved party considers they have not been properly provided for in the Will, or there are concerns as to the legitimacy of the Will and whether it reflects the true wishes of the deceased. There are a number of options available to parties in these situations.

Wills in Queensland are governed by the Succession Act 1981 (“the Act”).

In order for a Will to be valid, the person making the will (“the Testator”) must:-

1. Have testamentary capacity;
2. Have testamentary intention; and
3. Know and approve the contents of the will.

Testamentary capacity is slightly different to capacity in a normal legal sense. In determining whether the testator has testamentary, the court will consider whether they:-

1. Were aware and appreciate the significance of the act in Law which they are about to make;
2. Were aware, in general terms, of the nature, extent and value of the estate;
3. Were aware of those persons who may reasonably be thought to have a claim upon their estate and the basis for and nature of the claim by those persons; and
4. Have the ability to discriminate between the respective strengths of the claims of other persons.

If a testator does not satisfy those elements, then it is likely that they did not have the capacity to make the will.

The person making the will must also intend that the document take effect as a will and that it will be their final will. They must also intend:-

1. That the will take effect as a testamentary instrument;
2. To make an irrevocable disposition of property, effective on death; and
3. That the testators wishes become effective immediately.

The testator must know and approve of the contents of the will and therefore comprehend the effect of the will. This is essential, as if the testator did not know and approve, it cannot be said that the will reflects the testator’s intention.

Fraud and Undue Influence

The law also provides further protection where there is fraud and undue influence. Such matters represent an interference with a testator’s freedom to dispose of their property as they see fit.

In cases where there is undue influence, it is possible that the above elements of a valid will be present. However, a person such as a family member, friend or carer could coerce the testator into signing a will. Undue influence has been difficult to prove in recent years due to the lack of evidence and the obvious inability of the testator to provide evidence.

One example where undue influence was successfully argued was in the case of Dickman v Holley. In that case, the aggrieved party was a friend of the deceased for a number of years. The relationship was described as being similar to that of a mother and son. The deceased had told the aggrieved that she would leave him everything in her will. A will was prepared by a solicitor which left everything to the friend. Later, the deceased could not care for herself and was placed into a Salvation Army hostel. The deceased was easily influenced due to her condition and the employees of the hostel pressured her into making a will in favour of the Salvation Army. As such, the court held that the deceased was subject to undue influence and coercion and did not admit the wills to probate.

Fraud is distinct from undue influence in that it concerns statements to the deceased that were false or misleading. Examples of fraud can include:-

1. Misleading a testator as to the nature of their relationship with a person which induces the testator into naming that person as a beneficiary;
2. Misleading the testator into forming a false impression of a person that results in them being removed from the will; or
3. The will has words inserted without the testator’s knowledge.

Fraud could also include allegations of forgery, where a signature is forged or it is not the will of the testator.

Family Provision Claim

The Act enables certain people to make a claim against a will where the deceased did not make proper provision for those people. In Queensland, a family provision claim can be made by a spouse, child (including stepchildren) or a dependant.

The Act provides that a court can order a provision out of the estate where adequate provision has not been made for the relevant spouse, child or dependant. If the court finds that adequate provision has not been made, then the court will consider the ability of the person to meet their financial obligations and the standard of living of the person during the deceased’s lifetime. This will be balanced against the size of the estate and the competing claims to the estate.

Certain conduct may result in ineligibility to make a family provision claim. For example:-

1. Causing the death of the deceased;
2. Contracting out of eligibility;
3. Adultery or desertion by a spouse; and
4. Absence of contact by a child or stepchild.

Such conduct is not an absolute bar, and the court will consider the surrounding circumstances.

Parties need to move quickly where there is a potential family provision claim, as claims must be brought within 9 months of the date of death. Notice should be given to the executor as soon as possible (and certainly within 6 months of the date of death) to preserve the assets of the estate.

Rose Litigation Lawyers act frequently in wills and estate litigation matters, including family provision claims. Our solicitors are experienced in these matters and can provide you with direct, honest and commercial advice about your prospects on commencing, or defending any such action. Our firm understands that there are often sensitive personal matters at play in litigation of this nature, and we can provide you with the guidance and support required during this time.