You May Have the Right to Challenge a Suspicious Will
If you believe that the Deceased did not understand the effect of the Will they
signed or did not understand what they were doing when they signed it, you may be
able to challenge that Will on the basis that the Deceased did not have "testamentary
capacity".
To have "testamentary capacity", the Deceased must generally be of "sound mind,
memory and understanding" when they signed their Will. This means that the Deceased
must have been able to understand:
- What the Will was and what its legal function was to be;
- The nature and extent of their assets and liabilities; and
- The potential claims that people may have had against their Estate.
In our experience, a Will maybe suspicious if:
- Alzheimer's Disease or Dementia is listed as a cause of death of the Death Certificate;
- The Will was executed at a nursing home or hospital shortly before the Deceased's death;
- The Will is prepared by someone who takes a benefit under it; or
- The Will is prepared at the request of someone who takes a benefit under it.
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If the circumstances surrounding the making of a Will include any of these factors, it may be deemed to have been created in suspicious circumstances and a Court may rule the Will invalid. -
If you are concerned that a Will may have been made in suspicious circumstances you should act quickly to ensure that the Estate is not administered or your rights may be lost or be more difficult to enforce.
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