Where there is some suggestion that the Will was not valid

There are a number reasons why a Will may not be valid. For example there may be some concern about:

• whether the deceased person had or did not have the cognitive or testamentary capacity to make the Will he or she signed;

• possibly there is some doubt about whether the person who made the Will knew and understood its terms; or

• possibly there were suspicious circumstances about making of the Will.

   

There are other circumstances that might cast doubt over the validity of a Will.

What should you do when you are confronted by such a situation?

It is critical that you act immediately. The time to argue about whether there is a valid Will is before a grant of probate is made. If the grant has been made by the time that you get legal advice, the options available to you are more limited.

For this reason it is important that you get specialist advice at the earliest point.

Often the first step is to lodge a caveat to prevent a grant of probate being made, and to provide time to assess whether there is a case to query the validity of the Will. This is a very technical area of law.

When capacity is in issue, some of the investigations include:

• The solicitor or person who prepared the Will will need to be contacted to canvass the contents of his or her file and recollections as to the giving of instructions in regard to the Will; 

• Any medical evidence which is contemporaneous with the time the instructions were given will be extremely relevant and can be critical. There may be evidence on doctor’s files or the files of other health professionals. The treating doctor’s file, hospital files and Nursing Home files will also be relevant; and

• External evidence from persons such as other neighbours or family members who had regular contact with the deceased can be very important.

   

Expert reports by specialist doctors reviewing all the evidence are often needed.

Knowledge and approval is a very important issue for a valid Will. Was the Will maker on any special medication that would affect cognitive ability? Was the Will made through a Solicitor or not? Did the Will maker have deficits in sight, hearing or speech that might have affected understanding? Was the Will signed at the solicitor’s  office or someplace else where possibly there was no opportunity to fully read and understand its terms? Who provided the instructions to the lawyer who drafted the Will document? Did the instructions come directly from the Will maker or were they conveyed through some third party?

These and other questions are all relevant matters that can affect whether the document is in fact a valid Will.

At McNab, McNab & Starke we will guide you through this complex area of law.

We can help

We will respond within the next business day. You can also call 03 9670 9691.