Challenging a Will Flashcards
(12 cards)
on what basis can a Will be challenged?
A will can be challenged one or more of the following grounds:
o T lacked capacity
o T lacked knowledge and approval
o Lack of due execution
o Duress/undue influence
who has the burden of proof when a challenge is made on the basis of capacity, knowledge + approval, or execution?
BOP is on the party propounding the will (i.e. the party claiming it is valid)
if applicable, the propounder can rely on of the relevant presumptions. If not, they will need to provide alternative evidence that the Will is valid.
Once evidenced, the BOP shifts onto the challenger.
explain the presumption of capacity
Propounder can rely on the presumption of capacity if the will is rational on the face of it + it has been duly executed
explain the presumption of knowledge and approval
Propounder can rely on the presumption of knowledge and approval if T had capacity + the will has been duly executed. However, the court may require evidence where:
o T is blind, deaf or illiterate
o There is a mistake
o There are suspicious circumstances
explain mistake (inc. examples)
what can the court do if there has been a mistake?
Must be a mistake (not misunderstanding), i.e.:
o T signed the wrong document
o The will included/omitted information they were unaware of
The court cannot rewrite the Will, but they can order it be rectified if it does not express T’s intentions due to a clerical error or failure to understand T’s instructions
give two examples of when the court will not rectify a mistake
o Legal meaning of words was misunderstood
o Instructions were understood but not carried out due to inadequate drafting
what are exampled of some suspicious circumstances?
o Will was prepared by a B
o D had no opportunity to read the will
o Out of character dispositions
explain the presumption of due execution
Propounder can rely on the presumption of due execution if the will is rational on the face of it + they did not prepare it or take benefit under it (duly executed if attestation clause inc.)
who has the BOP when pleaded duress/undue influence?
BOP is always on the claimant
what is duress?
T makes a Will following actual or threatened force or fear
what is undue influence? what factors are relevant in the court’s assessment?
T is pressured into making a will in terms they otherwise would not have. Must be more the persuasion.
relevant factors?
o T’s physical + mental strength are relevant factors
o Length of time pressure was exerted
o If T received independent legal advice
o Motive of T and defendant
what is the difficultly with pleading undue influence / duress?
- High burden to meet. Strong direct or circumstantial evidence required (i.e. T was vulnerable, D involved in making will, T distressed/confused, manipulation)
- If this is pleaded and not proved (even if the will is invalid on another basis), the court may impose cost sanctions
