Is this Valid? Questioning Testamentary Capacity and Will Validity

By Natashia Blank

A will can be questioned for a variety of reasons. One basis is the lack of adequate provision (e.g. being provided for financially, known as a family provision claim). Another ground is the formal validity, which is asking whether the will follows proper execution procedures which are prescribed at section 10 of the Succession Act (Qld).

This article focuses on questioning the validity of the mental aspects of the making of a will, also called having testamentary or mental capacity - the ability to understand their actions.

Considerations For a Will’s Validity

A will is considered valid if, at the time of making the will, the person:

1. Intended to make a will.
2. Had testamentary capacity (assessed using the Banks v Goodfellow test)
3. Knew and approved the contents of the will; and
4. Was not influenced by fraud or undue influence.

To challenge the validity of a will, one must have an identified interest in the deceased's estate that will be affected by the grant of probate, such as a beneficiary.

A beneficiary could be spouses or de facto partners, children (including stepchildren), and individuals who relied on the deceased for financial support.

The Challenge Process | The Will in Solemn Form

The first step involves lodging a caveat in the registry of the Court to stay the probate proceedings. Once a caveat is filed, and the registrar's notice has been complied with, the person seeking the grant of probate, usually being the executor, will be required to take action to prove the will in 'solemn' form.

Within solemn form proceedings, the court will consider the evidence submitted by the parties and determine whether the will was validly made by the testator.

A Real-Life?Example of a Will’s Validity Being Questioned

The New South Wales Supreme Court case, Petrovski v Nasev; The Estate of Janakievska, sheds light on the circumstances necessitating a grant of probate in solemn form.

The deceased, Vasilka Janakievska, prepared two wills in her lifetime – one in 1999, and another in 2004. The legal question revolved around the validity of the 2004 will, and the Court addressed four key inquiries:

1. Did the deceased validly execute the 2004 will?
2. Did the deceased have testamentary capacity when she executed the 2004 will?
3. Was the deceased unduly influenced into making the 2004 will? And
4. Did the deceased know and approve of the contents of the 2004 will?

The Estate's value stood at around $1.5 million, and it came to light that, at the time of crafting the 2004 will, the deceased was senile, having suffered a stroke in 2003, which adversely affected her physical and mental health.

Upon careful consideration of the evidence, the court determined that the deceased did not know or approve of the contents of the 2004 will, did not have testamentary capacity, and in any event, had been unduly influenced in making the 2004 will.

Consequently, the Court issued a grant of probate in solemn form of the deceased's 1999 Will.

Conclusion

If you believe there are suspicious circumstances surrounding the will of a deceased loved one, or you are the executor of the estate and require legal assistance in responding to a caveat that has been lodged, it is important that you obtain legal advice as a matter of priority.

More Information

• How to Contest or Challenge a Will
• What is the Difference Between Contesting and Challenging a Will???
• Will Provisions: Grant of Probate
• The Role of a Beneficiary when a Will is Disputed
• Contact Argon Law