{"id":307175,"date":"2025-11-20T22:23:22","date_gmt":"2025-11-20T22:23:22","guid":{"rendered":"https:\/\/peraltafinancing.com\/business\/legal\/what-happens-when-a-will-is-contested-blog\/"},"modified":"2025-11-20T22:23:22","modified_gmt":"2025-11-20T22:23:22","slug":"what-happens-when-a-will-is-contested-blog","status":"publish","type":"post","link":"https:\/\/fivemor.com\/?p=307175","title":{"rendered":"What Happens When a Will is Contested? | Blog"},"content":{"rendered":"


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When a person seeks to challenge a deceased person\u2019s Will, they will often place a caveat against the estate to prevent Probate being obtained. This will cause significant delays in the administration of the deceased\u2019s estate, especially if the challenger does not bring their formal challenge in a timely manner. In these circumstances, the named executor may consider an application for probate in solemn form. Unlike a simple probate application, solemn form proceedings require determination by a judge as to whether the Will should be admitted to probate, therein allowing the challenger to formally raise their challenge by way of defence. An example of this was seen in the recent case of Burgess v Whittle and another[1]<\/strong><\/a><\/em>.<\/p>\n

The case concerned the estate of Elizabeth Rowell (Deceased<\/strong>) who died in 2017. Her daughter, the Claimant, sought to rely upon a 2014 will as the last will and testament of the deceased, whilst her sister, the First Defendant, challenged its validity and sought to rely on an earlier 1984 will which saw her inherit. The grounds relied upon by the First Defendant were:<\/p>\n

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  1. Lack of Testamentary Capacity;<\/li>\n
  2. Want of Knowledge and Approval;<\/li>\n
  3. Undue Influence; and<\/li>\n
  4. Loss of the original Will.<\/li>\n<\/ol>\n<\/div>\n

    Lack of testamentary capacity<\/h2>\n

    The First Defendant alleged that the Deceased lacked mental capacity when making the 2014 will. The court applied the classic test from Banks v Goodfellow <\/em>(see our previous blog here<\/a>) which requires understanding the nature and effect of a will, the extent of one\u2019s property and the claims of potential beneficiaries.<\/p>\n

    An expert report confirmed that, although the Deceased had early-stage dementia, her symptoms were not severe enough to impair capacity. The court accepted this evidence and found that the Deceased had testamentary capacity at the relevant time.<\/p>\n

    Want of knowledge and approval<\/h2>\n

    The second challenge was that the Deceased did not know or approve of the contents of the Will. Normally, proof of capacity and due execution creates a presumption of knowledge and approval. Here, the Will was properly executed and there was no evidence of suspicious circumstances. The presumption applied and the court held that the Deceased knew and approved of the Will\u2019s contents.<\/p>\n

    \u00a0Undue influence<\/h2>\n

    The First Defendant alleged that the professional will drafter exerted undue influence over the Deceased. Undue influence requires coercion that overpowers a testator\u2019s free will. Mere persuasion or advice is not enough. This allegation was not pursued by the time of the trial and the court noted that such serious claims should not be made without proper evidence.<\/p>\n

    \u00a0Loss of the original will<\/h2>\n

    Finally, the First Defendant argued that because the original 2014 Will could not be found, the earlier Will should be admitted to probate. The court rejected this. The evidence showed the original was sent to the Probate Registry and later lost by them. Mere loss does not revoke a will with revocation requiring a deliberate destruction by the testator. The court therefore granted probate of a copy of the 2014 Will in solemn form.<\/p>\n

    This case highlights the following key principles when dealing with Will disputes:<\/p>\n

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