When someone dies, their will states their wishes and outlines how the estate will be distributed. Sometimes the beneficiaries or others will want to challenge the will. Commonly wills are challenged when it is believed the deceased did not know or was not aware of the contents of their will.

While this may sound simple enough, if there are suspicious circumstances surrounding the will’s preparation, then the burden of proving that the deceased knew and approved of the will’s contents switches to the person claiming that the will is valid.

So, what circumstances are suspicious circumstances and does that mean that the will is invalid?

The NSW Supreme Court recently highlighted circumstances which may cause suspicion to arise. These include:

• Whether the person who prepared the will receives a substantial gift in the will,
• The complexity and size of the estate,
• Whether independent advice was available; and
• If the deceased’s children or ‘natural beneficiaries’ have been excluded.

Once suspicious circumstances have arisen, it is quite a difficult task to prove that those circumstances should not invalidate the will.

The Supreme Court of NSW recently considered a case where the deceased signed a new will just months before his death. The will was prepared by his neighbour (who was named as the executor) and the entire estate was to be left to his neighbour’s wife despite the fact that the deceased had previously left his estate to charity. Nevertheless, the court decided that the will was valid despite the suspicious circumstances surrounding its execution.

This decision was primarily based on the fact that the gift to the neighbour’s wife could be justified by the development of a closer friendship between her and the deceased during his illness and that the neighbour had clearly asked the deceased if he still wanted to leave anything to charity in the new will when he was preparing it.

This case suggests that the most effective way to prove the validity of a will where suspicious circumstances exist is to produce evidence of the fact that instructions were given to draft the will, other written or oral evidence of the deceased’s intentions, and the fact that the will was read to the deceased before it was signed.

At Fox & Staniland, we have extensive experience in estate litigation acting for both claimants and estates. Contact us on 9440 1202 if you require further advice on challenging a will or defending a dispute about the validity of a will, there may still be time!