Undue influence is where a coercion or pressure is involved and used against a testator, which results in them leaving a Will that does not reflect their wishes or intentions.To contest a Will on the basis of undue influence requires a person to prove on the balance of probabilities that influence or coercion was involved at the time of making the Will and consequently this caused the testator to sign the Will which is inconsistent with their intention or free will.The use of undue influence can have the effect of invalidating a Will, or in some cases particular provisions of a Will.Undue influence is difficult to establish, and it is crucial to have a lawyer who understands the process and legalities to establish this cause of action to contest a Will.At RHC Solicitors, we have a team of estate lawyers who handle estate disputes every day.

Lack of capacity is often used to challenge a Will and is based on a reasonable belief that a testator lacked the requisite mental capacity to execute a Will, often referred to as ‘testamentary capacity’.There is no single legal definition of capacity and the legal definition depends in each case on the type of decision which is being made or the type of transaction that is involved. This means there are a variety of legal tests of capacity, some of which are contained in legislation such as the Guardianship Act and others which have been developed in common law (case law), such as the test for testamentary capacity.These diverse tests regarding legal capacity mean that a client may have the capacity to make some decisions, such as being able to decide some financial transactions but otherwise being unable to make other types of decisions.A finding of incapacity in relation to particular things or areas (such as health care needs) does not automatically mean that person’s capacity is lacking in another area (such as financial needs). This has really been highlighted by the Supreme Court, which has formerly found that a person incapable of managing their financial affairs may still be capable of making a Will.[1]Despite the varying legal tests for capacity, the fundamental issue is whether the person can:understand the facts involved in the decision-making and the main choices that may be available to themweigh up the consequences of their choices and understand how the consequences affect them and their needseffectively communicate their decision[2]The formula for determining testamentary capacity is summarised well in the judgment of the Court (see Cockburn CJ, Blackburn, Mellor, and Hannen JJ) delivered by Sir Alexander Cockburn in Banks v Goodfellow 1870 LR 5 QB 549 at 565 as follows:“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made.”Generally, where a person may have difficulty demonstrating these basic things, then it warrants further investigation. There are also general ‘red flags’ that point to the need for further investigation, but they are not exhaustive and should not be used as grounds for a definite diagnosis. These can include the testator:memory lossearly or progressed onset of dementiahaving difficulty with communicationhaving difficult calculating the nature of a specific giftnot being able to understand the extent of their assetsbeing regularly hospitalised or otherwise needing extensive caregiving instructions in an aged care facility or in the hospitalpassing away within a short time prior to the making of the Willbeing accompanied by family, and the family members helping them answer questions from a solicitorbeing unable to repeat advice or otherwise being unable to recall information being providedIf a testator does not meet the varying limbs of the general test, it is likely that they did not have testamentary capacity to make a Will.In order to challenge a Will on grounds of lack of testamentary capacity, the complainant will need to show the court that there is doubt that the deceased person had the required basic criteria.In proceeding involving an argument over testamentary capacity, it is prudent to gather evidence to support their allegation, which often includes:Obtaining a copy of a solicitors file, including file notes, statements and other records that may be held in relation to when the Will was draftedObtaining medical recordsObtaining witness statementsObtaining anecdotal evidence such as statements from people who were involved in the health care of the testator or alternatively someone who observed their conduct at or around the time of drafting the Will---[1] Re Estate of Margaret Bellew [1992] NSW Supreme Court, Probate Division (Unreported) McLelland J, 13 August 1992.[2] Jenna MacNab, “Capacity: A practical guide for lawyers” (2008),46 No.5 LSJ 68 at 71.

Where a Will has been procured by fraud, it can be challenged. Fraud generally arises where a person has misled a Will maker to make the testamentary instrument through intentionally false statements or by failing to state relevant.To prove fraud, a person must show the conduct arose in circumstances when the fraudster has either obtained a benefit under the Will or did so in order to prevent someone else receiving something under the Will (for example, a child or alternatively a dependent).There are many examples at law of fraud, which has resulted in setting aside the Will such as:Where the testator has signed a document which they did not believe to be a WillWhere the testator has been misled about something in the WillWhere the testator was informed the wrong thing at the time of drafting the Will with the intention to deceive them

In the event the Testator's death has been caused by the criminal conduct of another person who is entitle to receive a benefit under their Will, it is well established that their conduct may be such as to preclude them from receiving the gift. This is known as the ‘forfeiture rule’.The person who has committed such an act is also excluded from benefiting from assets which do not necessarily form part of the estate such joint tenancy property (right of survivorship), superannuation proceeds and even life insurance.In Queensland, there is no specific legislation dealing with the ‘forfeiture rule’, however, the principles are set out in the common law (case law).A good example of the ‘forfeiture rule’ applying is the Baden-Clay case. The common law forfeiture rule applied to the husband and would have applied even if his murder conviction was downgraded to manslaughter. There was also argument that the motive behind Allison’s murder was the financial benefit that the husband, Baden-Clay, would receive from her estate. This was ultimately rejected by the Court and would, in any case, be deemed irrelevant by the Court under the forfeiture rule where the exclusion applies. As a consequence in that case, the wife’s (Allison) father was responsible to administer the estate, and the daughters will receive the some $1 million estate in in entirely upon attaining the age of majority.

Generally, where there are serious questions to be tried as to the validity of a Will, lodging a caveat in the Supreme Court of Queensland against the Grant of Representation will provide further time to investigate the issues.If a caveat is lodged without proper or adequate grounds, there are also very serious implications and even adverse cost orders in some cases.A caveat is a legal document that is filed in the Supreme Court of Queensland preventing a Grant of Representation, whether a Grant of Probate or a Grant of Letters of Administration.A person who claims to have an interest in an estate may be able to file a caveat. This can include an executor or trustee, a beneficiary, a person who has been left without under a Will and so on.Once the caveat is filed in the Supreme Court of Queensland, it will remain in force for 6 months, or until the caveat is withdrawn, set aside by the court.Once a caveat is filed, a party may be required to produce a notice in support of the caveat. Further, in Queensland, the court rules provide various different types of caveats which can be filed including:A caveat which requires an application for a Grant to be referred to the court as constituted by a Judge – usually filed in circumstances there is a n issues as to who should apply for a GrantA caveat requiring proof in solemn form of the Will of the deceased – usually file where there is an issue in relation to the form or signing of a WillA caveat against the Grant being issued for the estate – usually where there are suspicious circumstances, fraud, lack of testamentary capacity and the likeThe Court can set aside a caveat only if the Court considers that the evidence by the caveator fails to:Show that the caveator has good prospects of establishing an interest in the estate; orRaise doubt about whether a Grant may be made; orThe caveat has been filed improperly or not for good reason.There are severe cost implications when dealing with caveats, especially if a caveat is filed and it can be later provided the wrong caveat was filed, or it was filed without proper reason or prospects of success, or a person did not have an interest in the estate.It is crucial to immediately engage a lawyer who understands caveats and the process by which one should be filed and for what purpose.