Challenging a will requires the proper evidence and understanding.
If you believe you have grounds to contest a will in QLD, seeking legal advice promptly is crucial, as there are time limits on certain challenges.
Below is an outline of the key pieces of evidence commonly needed to contest a will. Let our experienced will dispute lawyers guide you through the necessary processes and help determine the best course of action.
Lack Of Testamentary Capacity
The testator (the person who created the will) must have comprehended their will and its effects, known their assets, and know who would benefit from their inheritance to show a “lack of testamentary capacity.”
Medical documents suggesting cognitive difficulties, witness comments concerning the testator’s mental condition, medical expert evidence, and will solicitor notes are routinely utilised.
The testator’s erratic conduct or significant departures from previous wills may indicate capacity concerns. It’s complicated; therefore, contact an experienced Queensland estate lawyer if you think a will may be disputed.
Also read: Contesting a Will Due to Dementia in Australia
Undue Influence
‘Undue influence’ in wills refers to coercing or manipulating a testator into making choices that don’t represent their true intentions.
This may happen when the testator is separated from loved ones and a particular person, who frequently profits from the will, controls them.
Improper Execution
For a will to be validly executed, there are generally accepted criteria: the will must be in writing; signed by the testator (or someone else in the testator’s presence and under their direction); and witnessed by two or more individuals present at the same time, who then also sign the will in the testator’s presence.
To challenge the execution:
- Document Examination: Check if the will adheres to the written format, and verify the testator’s and witnesses’ signatures.
- Witness Testimony: Interview or obtain statements from the witnesses. It might invalidate the will if they were not present simultaneously or needed to understand their role.
- Circumstantial Evidence: Establish the circumstances surrounding the will’s signing. Were there discrepancies or anomalies in the environment or process?
- Expert Analysis: Engage a handwriting expert if there’s suspicion about the authenticity of the signatures.
- Legal Counsel: Consult with a solicitor experienced in estate law. They can provide insights into technical flaws or procedural oversights during execution.
If these elements reveal that the will’s execution did not meet the requisite standards, a court could deem it invalid.
Forgery
A will may be disputed for forgery. A forensic handwriting specialist would compare the will’s signature to testator samples to contest its legitimacy.
The witnesses who supposedly signed the will must testify if they were there during its execution and saw the testator’s signature.
Mismatched ink or typography discrepancies are further signs.
The testator’s location and mental condition, when the will was signed might give more information.
Comparing the challenged will’s provisions to prior copies might reveal unexpected changes, and document analysis specialists can check for manipulation.
An estate law attorney may manage the challenge based on facts and legal precedent.
Legal Support
When gathering evidence to contest a will, seeking specific legal support and expertise is crucial to ensuring a robust case and adherence to legal procedures. Here’s what you might need:
- Estate or Probate Lawyer: This should be your primary point of contact. They’ll guide you through the legal process of contesting a will, provide advice on the merits of your case, and ensure that all legal protocols are observed.
- Forensic Handwriting Expert: If you suspect forgery or question the authenticity of signatures in the will, a forensic handwriting analyst can provide an expert opinion on whether the signature matches the known handwriting of the testator.
- Medical Professionals: If contesting based on the testator’s lack of mental capacity, medical experts, especially those who had contact with the testator before their death, can provide evidence regarding their cognitive state and mental health.
- Document Analysts: Experts in document examination can assess the will for signs of tampering, the age of the ink, and anomalies in paper type, all of which can be indicators of forgery or improper execution.
- Witnesses: Witnesses present during the will’s creation, or those familiar with the testator’s wishes and state of mind, can provide crucial testimonies. An attorney can guide you on how to approach and document their statements.
- Private Investigators: In cases where there’s suspicion of undue influence or when trying to understand the circumstances surrounding the creation of a will, a private investigator can gather evidence, track down witnesses, and uncover behaviours that can bolster the case.
- Legal Researchers: They can help identify past legal cases with similar circumstances to understand how courts might interpret the evidence and the potential outcomes of the case.
- Financial Advisors or Accountants: If there are questions regarding the testator’s financial state or the management of their assets, these professionals can provide insights, especially if there are discrepancies in the estate’s valuation.
Engaging the right experts and professionals ensures a comprehensive approach to contesting a will, increases the chances of success, and ensures that all actions taken adhere to legal standards.
Do You Have the Right Evidence to Contest a Will?
At Walker Pender, we specialise in supporting you through this challenging process, ensuring every piece of evidence strengthens your case.
Don’t leave your claim to chance; trust the experts.
Ready to uncover the truth and advocate for your rightful inheritance?
Contact Walker Pender today. Your peace of mind is just a click away.
