Formal Validity of a Will
What is the distinction between formal validity and essential validity of a Will?
For a Will to be formally valid in Victoria it must be executed in accordance with the requirements of the Wills Act. Essential validity on the other hand relates to the mental elements required to make a Will.
To establish essential validity, at the time of making their Will the Willmaker must have:
Intended to make a Will;
Had testamentary capacity;
Known and approved the contents of the Will and
Not been unduly influenced in the making of the Will.
How do you impugn the essential validity of a Will?
To impugn the essential validity of a Will the first step is to conduct a search to establish if a Grant of Representation (“GOR”) has been obtained, and if not to lodge a caveat using RedCrest Probate. Lodging a caveat gives notice to potential applicants that issues exist for investigation by the Court in relation to the proceedings. The caveat will remain in place for 6 months.
Once an application for a GOR is made the Caveator must, within 30 days, file and serve grounds to establish that they have standing and a prima facie case. The grounds are filed in Redcrest.
To establish standing the Caveator must have an interest in the outcome of the probate proceedings i.e. if the GOR is granted they will take a greater or lesser benefit from the estate than if it were not granted.
The grounds of objection are set out in the Administration and Probate Rules. The grounds must be particularised and must establish on the facts a prima facie case or “something to go on”.
Within 7 days of filing grounds a Summons for Directions must be filed and the Judge can make orders and costs are at the discretion of the Court.
If a GOR has already been obtained it is necessary to seek revocation of the GOR. Revocation proceedings are commenced by summons in Redcrest using the existing proceedings.
Particularised grounds for revocation must be filed, which will be similar to the grounds in a caveat proceeding, with the additional hurdle that an explanation must be provided for the delay and failure to file a caveat. The Applicant must also be able to show that they have standing and a prima facie case.
Undue Influence
To prove undue influence an Applicant must show that the Willmaker was pressured or persuaded by a beneficiary to provide for that beneficiary in their Will.
As undue influence is very rare the strength of the evidence necessary to establish undue influence on the balance of probabilities must therefore be high.
Standard of proof
The Court will consider the evidence as a whole and reach a conclusion on the balance of probabilities. In reaching the decision the Court should consider “the gravity of the allegation of undue influence, the significance of property passing under a will, and the inability of the testator to give evidence”.
The party seeking to prove undue influence bears the onus of proving it. In cases of testamentary undue influence (as opposed to equitable undue influence) it will not be enough to merely establish that the opportunity for undue influence arise, it must be established there was coercion exercised over the Willmaker which caused them to prepare their Will in a particular way.
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