challenging a will on the grounds of undue influence, coercion or pressure

Challenging a Will refers to the act of challenging the validity of a deceased person’s (the testator) Will. One of the valid grounds for challenging a Will includes the presumption that the testator was under undue influence, coercion or pressure, when making their Will.

Challenging a Will on the presumption of undue influence, coercion or pressure, is when it appears the testator’s free will was overridden by someone influencing the testator and that the testator’s Will actually reflects the “influencer’s” intentions and not the testator’s wishes.

The following facts can trigger a reasonable belief that a Will has been executed under undue influence, coercion or pressure:

1. If the testator makes sudden or unexplained changes to a long-standing Will. If prior Wills for the testator have been consistent with minor changes and without explanation, significant changes are made to the last Will. If the “influencer” is to inherit a significant amount under the new Will, especially if they are to inherit more than they would have under previous Wills;
2. If the testator is being isolated from friends and/or family. If the “influencer” is controlling who can visit/speak with the testator or discourages contact with family and/or friends or does not allow anyone to be alone with the testator;
3. If the main beneficiary of the testator’s Will is “orchestrating” the Will-making process. This can look like scheduling all of the Will appointments and transporting or providing instructions on behalf of the testator; and
4. If the testator is receiving threats or is being intimidated, manipulated or pressured to update their Will. This could include threats by the “influencer” to withdraw care, housing, transport etc, until the Will is changed.

Claims that the testator was under undue influence, coercion or pressure, when making their Will, is often difficult to prove without factual evidence to show that someone exerted coercion or pressure that took over the testator’s free will and decision-making, which resulted in the Will not reflecting the testator’s true intentions.

An undue influence, coercion or pressure claim, is often made before Probate has been granted by the Supreme Court, in an attempt to invalidate the Will before it is validated by the Supreme Court. A challenge of this sort is generally initiated by a ‘Probate Caveat’ being lodged by the person making the claim, or their legal representative.

A ‘Probate Caveat’ can only be lodged by a person with a caveatable interest in the estate. You may have a caveatable interest if you are any of the following:

5. A Beneficiary entitled to inherit under the Will;
6. A Beneficiary who would be entitled to inherit from the estate under the laws of intestacy. This is a Beneficiary who would inherit from the estate if the Will was invalid; or
7. An individual who is an eligible person to make a claim under Part IV of the Administration and Probate Act 1958 (Vic).

A ‘Probate Caveat’ will stop a Probate application from being granted by the Supreme Court until the Caveators concerns are resolved.

A challenge for undue influence, coercion or pressure, can also be made after Probate has been granted (if a Probate Caveat was not lodged). Though, this generally makes it more difficult to challenge, because once Probate has been granted, that means that the testator’s Will has been validated by the Supreme Court and an application would need to be made to the Supreme Court to revoke/invalidate the Will on the basis of undue influence, coercion or pressure.

There are strategies that can minimise the risk of someone challenging undue influence, coercion or pressure. Some of these strategies include:

8. Engaging a solicitor to draft the Will;
9. Avoiding family members and friends from being involved in the Will-making process; and
10. Clearly documenting the reasons for any significant changes to your Will.

If you require advice on the above or have concerns about a Will that may have been signed under undue influence, coercion or pressure, please contact our office on (03) 9707 1155 or via email at admin@wslegal.com.au.