I’m concerned that my mother was pressured into signing a will which excluded me as a beneficiary, what can I do?

Telemon Lawyers > FAQs > I’m concerned that my mother was pressured into signing a will which excluded me as a beneficiary, what can I do?
Portrait of Vincent van Gogh by Henri de Toulouse-Lautrec - The Yorck Project: 10.000 Meisterwerke der Malerei. DVD-ROM, 2002. ISBN3936122202. Distributed by DIRECTMEDIA Publishing GmbH.. Licensed under Public Domain via Wikimedia Commons
An application for undue influence in van Gogh’s estate may well have been successful: Portrait of Vincent van Gogh by Henri de Toulouse-Lautrec – The Yorck Project: 10.000 Meisterwerke der Malerei. DVD-ROM, 2002. ISBN3936122202. Distributed by DIRECTMEDIA Publishing GmbH.. Licensed under Public Domain via Wikimedia Commons.

The burden of proof in proving that a will was executed under unlawful pressure (“undue influence”) falls on the person trying to prove it. Naturally as the will-maker will no longer be alive at the time you want to prove this, this can be a challenging task.

Sometimes a starting point for proving undue influence is ascertaining whether the will-maker had testamentary capacity at the time the will was made. The tests for testamentary capacity is set out in an old English case called Banks v Goodfellow.

That case sets out the will-maker must:

  1. understand the nature and effect of a will
  2. understand the nature and extent of their property
  3. comprehend and appreciate the claims to which they ought to give effect
  4. be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition.

On one view the Banks v Goodfellow test is not a difficult test to satisfy.

Without proving a lack of testamentary capacity the task of proving undue influence is challenging. Mere pressure is not sufficient: “Pleas, persuasion and protestations” are legitimate. It must be proved that the mind of the will-maker was coerced. The free will of the will-maker must have been overborne, so that the person was coerced into doing something they did not wish to do (Craig v Lamoureux [1920] AC 349 at 357).

Also, in probate law, unlike the equitable doctrine of undue influence, there is no presumption of undue influence based on the relationship between the will-maker and the person accused of exerting undue influence (Winter v Crichton (1991) 23 NSWLR 116, 121)

Sometimes poor behaviour by a solicitor can be used as evidence supporting a claim of undue influence. See Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 as a good example.

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