How can the testator’s behaviour encourage people to contest a will?

Published 09 Feb 2016

Unfortunately for some people and their families, a death can be preceded by long spells of illness or injury. This can make an already traumatic period that much more challenging, especially if it causes them to act in a way that doesn’t match their usual behaviour.

In many instances, people with illnesses may be more susceptible to undue influence and other external pressures. If people notice odd behaviour or curious amendments to wills or codicils, it could be a sign that it’s time to contest a will.

However, not all cases of strange behaviour before a testator’s death are the sign of malicious behaviour. A recent example before the NSW Supreme Court illustrated that, just because a person is reducing the value of their estate with their actions, it doesn’t necessarily mean someone is up to no good.

Court case reflects suspicious behaviour

Most people who are ill and believe they might not have much time left will adjust a will accordingly, ensuring that family members and other people who were important to them are compensated fairly by the estate distribution.

However, in some cases, a testator may choose to begin breaking up the estate before they pass on by handing out gifts, possessions or monetary sums to people or organisations as they see fit. This could be a sign that they are acting under undue influence.

In a recent case, a pair of siblings came to the same conclusion after finding that their mother had been gifting assets and money to different people, an act that subsequently reduced the overall estate. This meant the siblings were due to get less from the estate distribution, leading to them contesting the will.

The court proceedings revealed that, before her death, the deceased gave $800,000 to the leader of a spiritual healing facility in order to fund renovations – a sum of money that has a massive effect on the value of any estate.

After giving money to a number of different people and organisations, the value of the estate had decreased from more than $2 million to just over $1 million.

The Judge eventually ruled that, despite giving away a significant proportion of her estate, the deceased did so willingly. On top of this, the final total was still enough to provide for the siblings based on their current and future financial needs so their claims were dismissed.

It’s important to consult legal advice before contesting a will. Contact the team at Gerard Malouf and Partners today.

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