In this post I will briefly discuss disputes about whether a will is valid, as opposed to other types of estate disputes that may involve contesting the effect of a will.

Contesting an estate on the basis that the will is invalid is often much more difficult than lay people understand. There might not be enough evidence and what can seem to be good evidence from one perspective might be capable of being explained away easily if a different context is presented.

There are many different circumstances that can lead to a will being invalid:

• The testator (the person whose will it is) may have lacked sufficient mental capacity
• The testator may not have understood that the document was to be a will, or approved its contents
• The testator may not have signed the will of their own free choice
• The will may have been revoked
• The document may not have been executed (signed, witnessed etc.) in accordance with the legal formalities
• Other legal rules and requirements may not be met

Each of the above items can be discussed at great length and so I will only be making a few brief explanatory points about each one. I will also mention a few of the key legal presumptions that can apply in disputes of this type. (As usual, people who are considering making or defending a claim should seek actual legal advice.)

It is also important to now how legal costs work. It is normally the case that most of the parties’ legal costs for this type of dispute will be paid out of the estate of the deceased, but if one of the parties has unreasonably caused the dispute then they may end up paying the costs.

For example, if there is a claim that a sibling manipulated a parent into changing the parent’s will, and that claim is not proven, then the claimant may end up paying all parties’ costs. Conversely, if it is proven, then the manipulative sibling might pay. At the end of the day the court has a discretion as to what happens with costs.

Lack of mental capacity
Disputes about whether a testator had mental capacity come up frequently. A testator has to be able to understand the general nature and effect of a will, and be able to bring sound judgment to the question of what should be in the will.

Sometimes it’s easy to tell whether someone has lost capacity, but very often it’s not. A person may have significantly diminished capacity but still be able to make a will if their medical conditions do not prevent them from considering who they should make gifts to upon their death.

These cases usually come down to what medical evidence is available about the deceased’s state of mind when the will was made, and the circumstances of the making of the will.

Understanding and approving the will
If a person lacks mental capacity then it also follows that they are incapable of meaningfully understanding and approving the will. Other situations can involve the testator simply not realising that they were signing a will, or signing the wrong will, or otherwise not intending that the document would be their will.

Free choice and undue influence
If a testator is forced to sign a will then it won’t be valid.

It is often very hard to show that this has occurred. There needs to be evidence of the testator being unable to exercise their free choice, not just that another person influenced the views of a testator.

Revocation
Wills are revoked by marriage, and partially revoked by divorce (in SA). They can also be revoked in writing or by intentional destruction of the will.

If a will is missing, then there can be a question of whether the deceased intend to revoke it.

Formalities
Each state has slightly different rules about how a will has to be signed and witnessed. If those procedures are not followed then the will is invalid. However, each of the states also now have powers to allow informal wills to be accepted if the court is satisfied that the document reflects the deceased’s intentions.

Other rules
There are other legal requirements that can cause a will to be wholly or partially invalid. A testator has to be over 18 when making a will, or have the permission of the court, and there are also miscellaneous requirements in some states, such as about who can be a witness.

Legal presumptions
Evidence about the making of wills can be hard to come by. The courts have therefore developed many evidentiary presumptions in connection with wills.

If a will appears on its face to be valid, then the court will presume that it is, and whoever is saying that the will is invalid will have to prove that it is not. On the other hand, if there is reason to doubt the validity of the will, then the onus of proof is on the person who says that the document is valid to remove that doubt.

Additionally, if a the court considers that the will has come about in suspicious circumstances (in a legal sense) then it may be unable to accept the will as valid without first testing the evidence very carefully.