There are a number of ways to dispute the validity of a Will, including, but not limited to:

1. the testator lacked testamentary capacity
2. the testator did not know and approve the contents of the Will
3. the testator was prevented by undue influence of a person for exercising his/her free will

In Power v Smart (2018) WASC 168 the daughters of the late Mrs Okle, who had dementia and severely impaired vision and hearing, unsuccessfully disputed the validity of their late mother’s Will. This case demonstrates the types of evidence required to contest a Will and the high threshold which must be met in order to succeed.

TESTAMENTARY CAPACITY

Testamentary capacity is the ability of a testator to make a valid Will. If a Will appears to be valid and has been properly executed (i.e. signed by the testator and two witnesses), a testator is presumed to have testamentary capacity. To challenge that presumption a party must put forward evidence which raises suspicion that the testator did not have capacity. If that suspicion can be established on the balance of probability, then the party trying to claim that the Will is valid must prove that the testator had the required capacity.

The late Mrs Okle had dementia but the Judge was satisfied that she had testamentary capacity at the time she signed the Will. The Judge was satisfied that Mrs Okle:

• understood the act of making her last Will and its effect;
• understood the extent of the property which was disposed of by her Will; and
• was able to comprehend and appreciate the potential claims on her estate by her daughters and grandchildren who she left out of her Will.

KNOWLEDGE AND APPROVAL

For the court to declare a Will valid, it must be satisfied that the testator knew and approved the contents of their Will. Mrs Okle’s daughters claimed that their mother did not know what was in the Will because she had severely impaired vision and hearing. The Judge found that this was not the case.

UNDUE INFLUENCE

Mrs Okle’s two daughters claimed that their mother was not able to exercise her free will because of the undue influence by her granddaughter Robyn, who had arranged for Mrs Okle to attend the solicitor’s office to give instructions for a new Will and was present for some of this meeting.  The Will was not signed until two months after the initial meeting and Robyn was not present when that Will was signed. The Judge found there was no undue influence proved.

So, whilst there may be some suspicious circumstances about the contents of a Will or the manner in which it was prepared and/or signed, there are many hurdles to overcome before a successful challenge can be mounted. Contact us so that we can provide you with the appropriate advice.

Paul Pritchard