The terms set out in a will can be overturned if it can be shown that the testator was “unduly influenced” by someone to make certain provisions in their will. A person must be able to show that there was improper influence exerted on the testator when they made their will.

 

The allegation is usually that a person who was close to the testator, often a child or a caregiver, abused their position of trust to convince the testator to favour themselves in their will. The Doctrine of Undue Influence protects individuals from “abuse of trust, confidence or power.”

 

A close relationship alone will not be sufficient for a presumption of undue influence, there must be evidence that one person dominated the will of the other. Also the fact that a will may be “unfair” is not necessarily evidence that undue influence was exerted on the testator. Testators often write wills which later may seem unfair to the beneficiaries but which the testator believed was fair when the will was executed.

 

Deborah Todd Family Law Victoria

Deborah A. Todd