Can You Challenge a Will if You Believe Someone Was Pressured Into Signing It?
When a loved one passes away, discovering that their Will leaves their assets in a way that seems unexpected or unfair can raise difficult questions. These concerns may be particularly serious if you believe someone influenced the deceased to change their Will shortly before their death.
But can you challenge a Will because you believe the person was pressured into signing it?
In New South Wales, a Will may be challenged if it was made as a result of undue influence, fraud or other circumstances that affect its legal validity. However, proving that someone pressured the Will-maker can be complex. Not every instance of persuasion, family disagreement or unequal inheritance amounts to undue influence.
Understanding the legal grounds for challenging a Will, the evidence required and the steps involved can help you determine whether further legal advice is warranted.
What is undue influence when making a Will?
Undue influence occurs when another person's influence overcomes the Will-maker's independent judgment, meaning the Will no longer reflects their own free intentions.
For example, concerns may arise where a person:
- Threatens or intimidates an elderly parent into leaving their estate to them.
- Uses a position of trust or dependence to pressure someone into changing their Will.
- Isolates the Will-maker from other family members while encouraging them to change their beneficiaries.
- Uses coercion or other improper conduct to obtain a financial benefit under a Will.
These examples may raise concerns, but the circumstances must be assessed carefully.
It is important to distinguish undue influence from ordinary persuasion. A person may strongly encourage a parent to leave them an inheritance, express disappointment about an existing Will or explain why they believe they should receive a greater share. That conduct does not automatically invalidate a Will.
The central question is whether the influence was so improper or coercive that the Will-maker's independent judgment was overcome and the document no longer represented their own intentions.
What are the grounds for challenging a Will in NSW?
Undue influence is one of several grounds on which the validity of a Will may be challenged.
Depending on the circumstances, a challenge may involve one or more of the following issues:
What evidence can help prove that someone was pressured into signing a Will?
Proving undue influence can be difficult, particularly because the Will-maker is no longer available to explain their intentions.
The Court will assess the evidence as a whole. Depending on the circumstances, potentially relevant evidence may include:
- Earlier Wills: Previous Wills may help establish whether the deceased's intentions changed and the circumstances in which the change occurred.
- Medical records: These may provide relevant information about the deceased's health and cognitive functioning around the time the Will was made.
- Solicitor's file notes: Attendance notes, correspondence and records of instructions may help establish what the deceased understood and whether they gave instructions independently.
- Witness evidence: Statements from family members, friends, carers or others who observed the relationship between the deceased and the person alleged to have exerted influence may be relevant.
- Communications: Emails, text messages and other records may help establish whether threats, pressure or controlling behaviour occurred.
- Circumstances surrounding the Will: The timing of the Will, the involvement of a particular beneficiary and any unusual arrangements may warrant further investigation.
No single item of evidence necessarily proves undue influence. For example, a sudden change to a Will or a substantial gift to one family member may raise questions, but it does not, by itself, establish that the Will is invalid.
The strength of a potential challenge depends on the available evidence and the applicable legal principles.
Can you challenge a Will simply because you were left out?
Not necessarily. There is an important distinction between challenging the validity of a Will and making a claim because the Will does not adequately provide for you.
If you believe the deceased was pressured into signing their Will, you may be considering a challenge to the Will's validity. However, if the Will is valid but you believe you should have received a greater share of the estate, you may need to consider a family provision claim instead.
Under the Succession Act 2006 (NSW), certain eligible people may apply to the Supreme Court of NSW for a family provision order if adequate provision has not been made for their proper maintenance, education or advancement in life.
Eligibility depends on the statutory requirements and the applicant's circumstances. Being a relative of the deceased does not automatically guarantee eligibility or an entitlement to an inheritance.
The distinction matters because the legal requirements, evidence and potential outcomes differ between the two types of proceedings.
What should you do if you suspect a Will was made under pressure?
If you believe a Will may have been made as a result of undue influence, it is important to obtain legal advice promptly. Depending on the circumstances, the following steps may be appropriate:
- Obtain a copy of the Will.
Review the terms of the Will and identify any changes that appear unusual or inconsistent with the deceased's previously expressed intentions.
- Preserve relevant evidence.
Keep any correspondence, messages, earlier Wills or other documents that may be relevant. Record your recollection of important events while the details remain clear.
- Seek advice before probate is granted.
If you have an interest in the estate and believe the Will is invalid, obtaining advice before probate is granted may be important. A solicitor can explain whether a caveat or other court process may be appropriate.
A caveat may prevent a grant of probate from being issued while the caveat remains effective, but it is not a final determination that the Will is invalid. The appropriate procedure depends on the circumstances and applicable court rules.
- Consider the potential costs and risks.
Contested estate proceedings can be complicated, time-consuming and expensive. There may also be a risk of being ordered to pay another party's legal costs if the challenge is unsuccessful. Before commencing proceedings, it is important to assess the available evidence, the legal grounds for the challenge and the likely costs.
Is there a time limit for challenging a Will?
The appropriate timing depends on the type of claim and the stage of the estate administration.
If probate has not yet been granted, there may be options for raising concerns about the validity of the Will before the grant is issued. If probate has already been granted, different procedural considerations may apply, and further court action may be required.
Family provision claims are subject to a separate statutory time limit. In NSW, an application generally must be made within 12 months after the deceased's death, although the Court may permit a late application in appropriate circumstances.
Do not assume that you can wait indefinitely because you are still gathering information. If you suspect undue influence or another ground for challenging a Will, seek legal advice as soon as possible.
Protecting your wishes through proper estate planning
While no estate plan can completely eliminate the risk of a Will dispute, taking the right steps when preparing or updating your Will can help reduce the likelihood of a challenge. This includes providing instructions to your solicitor independently, ensuring you understand the terms and effect of your Will, keeping appropriate records of your intentions and reviewing your estate planning arrangements following significant life changes.
A Will may be challenged on the basis of undue influence, but an unequal distribution or a beneficiary's involvement in the estate planning process does not, by itself, establish that the Will is invalid. The Court will consider the evidence and circumstances to determine whether the Will reflects the deceased's free and independent intentions.
If you are concerned that a loved one's Will may not reflect their true wishes, or you want to ensure your own estate planning arrangements reflect your intentions, Lawgix can assist with preparing and reviewing Wills and providing advice on contested estates. Contact our team to discuss your circumstances.
