15 January 2024

If you’re suspicious of a Will, what can you do?

Man and woman signing Will documents

Sometimes, a Will may be made that, on the surface, appears to reflect the wishes of the person who made it. To those close to that person, however, there may be suspicious circumstances surrounding the Will that are a cause for concern.

In situations like this, you may have grounds to challenge the Will.

One way to pursue a claim is to challenge the ‘knowledge and approval’ of the person making the Will, as was successfully pursued by the claimants in Ingram & Whitfield v Abraham. 

Case study

The late Ms Abraham passed away in 2021, following a battle with cancer, leaving two adult children.

Prior to her death, in 2008, the late Ms Abraham made a Will providing for her estate to pass equally to her two children. During her lifetime, however, Ms Abraham had made gifts in unequal amounts to them both.

In 2017, Ms Abraham was diagnosed with terminal bone cancer - which she elected to cease treatment in early 2019. Around the time of her diagnosis, her brother reached out, following a long period without contact.

As a result of her medical condition, Ms Abraham was considering making amendments to her Will. Evidence showed that this was in relation to providing equally for her children, taking into account the unequal gifts during her lifetime. 

Instead, a Will was made in 2019 which left the whole of the estate to her brother, with Ms Abraham’s expensive book collection passing to her brother’s wife in particular. The Will was prepared by her brother by using an online Will template. The Will was subsequently signed by Ms Abraham and correctly executed.

Her children challenged the Will on the basis of Ms Abraham’s lack of knowledge and approval of the Will. Reasons that were cited included that it had always been their mother’s intention to distribute her estate equally between her children and that there were suspicions surrounding the Will.

They claimed that the initials which appeared at the bottom of the Will, allegedly signed by Ms Abraham, were not her handwriting. There were also errors contained within the Will which would not have been approved by Ms Abraham, as she would have required that these were corrected prior to signing.

Her brother defended these claims, stating that he was following Ms Abraham’s instructions to prepare the Will and that her reason for doing so was because Ms Abraham had fallen out with her children. 

Upon hearing the facts of this case, the court found that the 2019 Will did not achieve what Ms Abraham wanted (i.e. leaving her estate to her children). The court also found that Ms Abraham had not understood the effect of the 2019 Will and her brother contributed to that misunderstanding. 

Seek early advice

Potential claimants are encouraged to make a claim as quickly as possible in suspicious circumstances like this, in order to ensure that an estate is not wrongly distributed and that relevant evidence can be preserved.

If you are suspicious of the circumstances around someone making a Will, get in touch with our contentious probate team without delay.

Katherine Marshall, Wilkin Chapman LLP
Need help?

Contact Katherine to discuss this further.

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