Mum changed her will three months before she died. We think she was pressured. What can we do?
A late change to a will, combined with declining health and a controlling individual — this pattern is more common than many families realise.
For the last two years of her life, Patricia's mother lived with her younger brother, Neil. Their mother had dementia — diagnosed eighteen months before her death, progressive, and by the end significantly affecting her memory and judgment. Three months before she died, her will was changed. The family home in Cottesloe, previously to be divided equally among the three children, was redirected entirely to Neil.
Patricia and her other sister had not been told about the change until probate was applied for.
They wanted to know whether the will could be challenged.
Two distinct grounds of challenge
In Patricia's situation, there are potentially two separate grounds on which the will might be challenged. They are different in nature and in the evidence required to support them.
1. Lack of testamentary capacity
A will-maker must have what the law calls 'testamentary capacity' at the time they execute a will. The legal test, which has been applied in Australian courts for well over a century, requires that the will-maker:
- Understands the nature and effect of making a will
- Understands the extent of the property being disposed of
- Understands the claims of those who might reasonably expect to benefit
- Is not suffering from any disorder of the mind that poisons their affections, perverts their sense of right, or prevents the exercise of their natural faculties
A diagnosis of dementia does not automatically establish a lack of capacity — the question is always whether capacity existed at the moment of execution. But progressive dementia, combined with a late change in a large estate and circumstances suggesting isolation, creates a serious case for investigation.
Evidence that will be relevant includes: medical records from the relevant period, the file notes of the solicitor who prepared the will, the observations of family members and care workers, and, if available, a retrospective assessment from a geriatrician or neurologist.
2. Undue influence
Undue influence is a separate and harder ground to establish. It is not enough to show that Neil had influence over his mother, or that he was the primary carer, or that the change favoured him. The court requires proof that the will-maker's independent judgment was overborne — that she was coerced, in the legal sense, into making a disposition she would not otherwise have made.
Evidence of undue influence is rarely direct. It is built from circumstantial material: the degree of dependence and isolation, the timing and circumstances of the change, whether the will was prepared by an independent solicitor who took instructions in private, whether the will-maker was able to give coherent reasons for the change, and whether any explanation for the change makes sense given the family history.
In Patricia's case, the relevant questions include: who contacted the solicitor to arrange the will change? Were Patricia and her sister excluded from that process? Did the solicitor who prepared the new will take steps to satisfy themselves as to capacity and the absence of influence? Were there any contemporaneous notes?
What should Patricia do — and when?
If there are genuine grounds to challenge a will on validity, the time to act is before probate is granted. Under section 63 of the Administration Act 1903 (WA), a caveat can be lodged with the Principal Registrar of the Supreme Court, preventing probate from issuing. This does not resolve the challenge — it preserves the status quo while the matter is investigated and, if necessary, litigated.
Once probate has been granted, it becomes significantly more difficult to set it aside. The grant carries a presumption of regularity. It can be challenged, but the evidentiary burden is high and the process more complex.
Time is therefore critical. If Patricia has concerns, she needs legal advice before the executor proceeds with the probate application.
What is realistic?
Challenges to wills on grounds of capacity or undue influence are not straightforward, and the strength of any challenge depends entirely on the quality of the evidence. Many such claims resolve by agreement — often because the executor and the benefiting party recognise the risk of an adverse finding and prefer certainty. Others proceed to hearing.
What Patricia needs at this stage is a clear-eyed assessment of whether the evidence is there to support a challenge, what that challenge involves procedurally, and what the realistic range of outcomes is. That is what an initial consultation provides.
If you have concerns about a will that has recently been made or changed, call Reg Biddulph on
08 9398 5533. Do not wait.
