Creating a Will Under Suspicious Circumstances

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Table of Contents

• What Constitutes Suspicious Circumstances?
• What Are Some Examples of Suspicious Circumstances?
• What is Undue Influence?
• Key Takeaways

It is not uncommon for individuals to assist a will maker create a will that benefits the party. The court generally views these circumstances as suspicious because of the implications that there was pressure put on the will maker to make particular decisions about their estate. Australia’s courts have provided clear explanations on how they will assess suspicious circumstances and undue influence, which we set out below.

What Constitutes Suspicious Circumstances?

The leading case of Nock v Austin [1918] HCA 73 sets out some key considerations that will lead the court to determine that the will maker created the will under suspicious circumstances. These include the following:

• Where there are no circumstances that create suspicion, the will-maker’s capacity and the correct execution of the will creates the assumption that the will-maker knew and consented to its contents;
• If any suspicious circumstances exist, the person asserting the will as valid (usually the executor) has to remove the suspicion by proving on the balance of probabilities that the will-maker knew of and approved the contents of the will;
• If the person who write or prepared the will receives a benefit under it, the court will examine the evidence supporting the will-maker’s approval of the will; and 
• If the court is not satisfied that the will contains the will-maker’s true intentions, they will refuse to grant probate.

What Are Some Examples of Suspicious Circumstances?

Examples of suspicious circumstances the court has considered include:

• Where a will-maker suddenly wants to leave out beneficiaries that he or she named in a previous will;
• Where a will-maker disinherits someone who might reasonably expect to have a claim to their property with no obvious reasons;
• Where a beneficiary has exhibited control over the will-maker; and
• Where a beneficiary or an individual known to them assisted the will-maker in preparing or instructing a solicitor to prepare a will.

In some of these circumstances, it is also possible that there has been an element of fraud, dishonesty or undue influence on behalf of the beneficiary in their interactions with the will-maker.

What is Undue Influence?

Undue Influence can apply when an individual coerces the will-maker into making certain intentions in their will. Coercion can take many forms, including the following: 

• Physical, involving violence or confinement;
• Verbal pressure on someone weak and vulnerable; or 
• Pressure to influence someone to simply give up and resign to the other’s point of view to get some peace.

The courts are clear that an individual can subject a will-maker to certain pressures that are lawful unless they are coerced into something they have no desire to do. It must be shown that this pressure prevented the will-maker from exercising their will autonomously. Australian case law highlights that this is often quite difficult to prove on the evidence usually available.  

Key Takeaways

If you believe you might have difficulty in making a will or that someone might question your intentions, or if you have a family member or friend that might be in a situation like those mentioned above, it is important to seek legal advice before taking any further action.