As you may expect, emotions will always run high following the death of a loved one. Family members and friends will all come together to mourn the passing, of course, but they will also be focused to a certain extent on the estate of the deceased. Sometimes, when the will is first read, the unexpected may happen. The individual may have left out someone who may have expected to be a beneficiary, or have given much of their estate to an unexpected third party. What type of recourse may you have, if you feel that you've been overlooked, or you think that something fishy is going on?
What Options Are Possible?
Firstly, it's very important to understand that anyone has the right to leave their estate to whoever they want to, according to established law across Australia. There are, however, some protections when it comes to questioning the validity of a will. It may be possible to prove that one person exhibited undue influence over the person writing the will, that caused this situation to arise.
Proof, Not Presumption
It can be quite difficult to prove this situation, however. Generally speaking, it's not enough to say that somebody had some type of power over the testator. It has to be proven that such power was actually exercised and because of that, the will was written in a different way. It can never be simply presumed that there was undue influence and it must be proven in a court of law.
Fraud or Coercion?
Usually, a court will consider whether the facts laid out are inconsistent with any other conclusion. They will want to know if undue influence was due to coercion or fraud. The mental and physical strength of the testator could be relevant in any argument because this will suggest just how much pressure was necessary to overpower.
Look for Signs
It can be very difficult to gather any direct evidence to support a claim of undue influence, especially as this type of activity will normally take place in secret and away from others. It may be possible to look at the behaviour of the beneficiary in question, however, and to determine whether any statements made or actions performed look consistent with coercion.
There is another way of looking at this, however. Sometimes, a court can rule that the deceased party did not necessarily know of, or approve the contents of the will. If there are any suspicious circumstances surrounding the generation of the will, this type of approach may be easier to prove.
Contact companies that handle wills for more information and assistance.Share