Challenges to the validity of the Will
Challenges to the validity of wills are notoriously difficult and have high evidentiary standards. Challenges of validity often fall into one or more sub-categories. These include, lack of testamentary capacity, lack of knowledge and approval, and testamentary undue influence. Lack of testamentary capacity cases involve situations where the testator did not have the ability to understand or comprehend the process of making a will, for example, they may have advanced dementia or other severe cognitive impairment. Lack of knowledge and approval claims relate to people who sign wills but could not have known or approved of the contents of the document. They may have had testamentary capacity but may be illiterate or blind and could have been mistaken in what they signed. Undue influence cases involve situations where the free will of the testator is overborne to the extent that they could not make a will giving effect to their true testamentary wishes.
Challenges under Family Provision (Testator’s Family Maintenance) legislation
Testator’s family maintenance legislation introduces a threshold jurisdictional question as to whether or not the deceased’s Will, or the statutory intestacy provisions,have made “adequate provision for the proper maintenance, support, education or advancement in life”of the claimant. The above question is one of fact and relevant to the claimant’s station in life as at the date of the deceased’s deathThe court measures the terms “proper” and “adequate” against the claimant’s station in life and the nature of the relationship that they had with deceased. The court does not consider the terms “proper” and “adequate” as fixed concepts but rather as flexible or relative. The court uses “a multi-faceted evaluative judgement,”which weighs up the competing needs of the parties. The court has regard to the current and future needs of the claimant. The court looks through the lens of a “just and wise testator and not one who is fond or foolish,”and one who is placed in a position of knowing all of the facts. A non-exhaustive list of examples of the factors have been set out in s60(2) of the Succession Act 2006 (NSW).
See ss6(1) and 7 FPA.
See s6(1) FPA, Coats v National Trustees Executors & Agency Co Ltd(1956) 95 CLR 491; Singer v Berghouse(No 2)(1994) 181 CLR 201 and Bondlemonte v Blackensee WAR 305.
Blore v Lang (1960) 104 CLR 124.
Vigolo v Bostin(2005) 221 CLR 191.
Basten JA, in Foley v Ellis NSWCA 288, at ; Pontifical Society for the Propagation of the Faith v Scales HCA 19 and Deveraux –Warnes v Hall WASCA 235.
Re Allen, Allen Manchester  NZLR 218.
Bosch v Perpetual Trustee Co Ltd  AC 463.