A word of warning – Disputing a Will on the basis the signature is forged and invalid

There are various ways you can challenge a Will. Some of the most common types of Will disputes are family provision claims and claims based on a Will being invalid.

Invalid Will claims are typically based on suggestions of suspicious circumstances around the making of the Will. Common reasons for a contested Will on grounds of invalidity include –

• The Will-maker did not know what they were signing.
• The Will was made fraudulently, or the signature was forged.
• The Will-maker did not have capacity to make a Will.
• The Will-make was subject to undue influence or pressure.
• The Will was does not conform to the legal requirements.

For a Will to be considered valid, the Will-maker must have knowledge of the content and be able to approve it. Therefore, the issue of validity may arise if the maker is given false or misleading information.

Wills can also be challenged as invalid if it is suspected that its fraudulent or was forged.  Examples of fraud in will-making include when a maker is tricked into signing, or misled as to what was in the Will. Forgery refers to when one suspects the Will was not actually made by the Will-maker.

Certain legal requirements must be met for a Will to be considered formal and valid. These include that it must be made in writing, signed, and witnessed by two adult people who are present when the Will-maker signed it.

Who Can Challenge the Will?

Certain people can challenge a Will, including a person that has an interest in the estate and there are suspicious circumstances, or otherwise the grounds for a Will dispute are met. Prior to a Grant of Probate or Letters of Administration being given by the Court so the estate can be dealt with, a person looking to make certain claims can lodge what is known as a caveat with the relevant Supreme Court Registry. This works to notify the Court that there is an issue with the Will, and does not allow a Grant to be made until the caveat is withdrawn, challenge heard, or the Court overrides the caveat. It is also possible to contest a Will after a Grant has been made.

You need to be careful to ensure that you have reasonable grounds for bringing a Will dispute. If you bring a claim that is very weak or without merit, the Court will not look favourably upon you and there can be major, costly consequences. The following case is a good example of where a Will dispute should not have been brought.

Case Study: The Estate of Alberto Magri (No 2) [2022] NSWSC 1779

In the case of the Estate of Alberto Magri, Alberto’s six children and ex-wife were set to inherit the estate in equal parts according to his Will. At the time of her father’s passing, one of the children was involved in separate Court proceedings involving her own son and his father. This daughter chose to disclaim (i.e. reject) her inheritance, as she did not one want them to receive any of these moneys or for it be eaten up by court system, and signed a Deed to this effect.

The daughter later decided against this, and brought Court proceedings against the estate. She argued that the Will was forged, amongst other claims. Ultimately, the Court dismissed her claims for lack of merit. Further, due to the unreasonableness of the claims, the daughter was made to pay the legal costs and the Court ordered that this could come out of her interest in the estate.