Posted: Thursday, 10 May 2018 @ 14:04
One of the issues that people face if they dispute the
validity of a will is what is the best legal method to focus on.
It is very important to get it right as the costs
implications of getting it wrong can be pretty unpleasant.
In the context of making a will, there is no presumption of
undue influence. If a will is to be found to be invalid, it must be established
that actual undue influence occurred. It is for those challenging the will to
produce sufficient evidence to satisfy the court.
And that is the rub - the onus is very much on the person
alleging undue influence.
A claim of this nature should be pursued carefully.
As the nature of this allegation is effectively alleging
fraud, the evidential burden is high.
This leads me to what I think are easier grounds for
disputing the validity of the will, namely the deceased did not properly understand and approve the
content of the will.
If the court’s suspicion is aroused, it is for those seeking
to propound the will to prove that the deceased fully understood how it
operated and approved its contents.
The burden of proof for disputing is easier than undue influence though you need to arouse suspicion.
The issue was considered in the case of Hoff v Atherton
where Judge Chadwick observed “A testator cannot be said to know and approve
the contents of his will unless he is able to, and does, understand what he is
doing and its effect. It is not enough that he knows what is written in the
document which he signs.”
Overall it is still not the easiest to claim to make but easier than disputing on grounds of undue influence.