Something is not right – Wills and Suspicious Circumstances
If a Will is made in suspicious circumstances, then it might not be valid.
A Willmaker (‘Testator’) must approve and have knowledge of the contents of their Will. If they do not, then their Will is not valid.
Suspicious circumstances can sometimes result in the Testator not approving and having knowledge of the contents of their Will.
Ordinarily, if there are no doubts about a Testator’s mental capacity to make a Will (‘testamentary capacity’) and their Will was signed and witnessed in accordance with law, then the law says we can presume that the Testator knew and approved the contents of their Will.
But as soon as there are suspicious circumstances, then we cannot rely on that presumption.
When suspicious circumstances are alleged, the person who was planning to prove or uphold the
Will has the task of removing those suspicions. They have the burden of proving on the balance of probabilities that the Testator did in fact approve and have knowledge of the contents of their Will.
What are suspicious circumstances?
Examples of suspicious circumstances include where:
- The Will was prepared by a person who is a substantial beneficiary;
- The Testator was blind, elderly or in poor health at the time of making their Will;
- The Will was made without any independent legal advice;
- There are radical changes from a previous Will;
- The Will was not read by or to the Testator before they signed it;
- The Will benefits unexpected people or leaves out close family members or friends who would usually be expected to benefit.
In considering suspicious circumstances it has been said:
In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.[i]
If it is determined that Testator did not approve and have knowledge of the contents of their Will, then it will not be valid. If there was a previous Will, then that might become their last Will, or if there was no previous Will then the Testator will have died intestate (ie. without a Will) and their estate distributed in accordance with legislation.
If you feel a Will may have been prepared in suspicious circumstances or the Will appears very out of character of the person who made it, then it is possible that the Will may not be valid. You should seek legal advice as soon as possible.
[i] Wintle v Nye  1 All ER 552, 557 per Viscount Simonds.