When Can a Will Be Challenged Because of a Carer's Influence?

One of the most common concerns we hear is:

"Dad changed his Will shortly before he died, and his carer ended up receiving everything. Can that really happen?"

The answer is yes, but not always.

Simply because a carer benefits under a Will does not automatically mean the Will is invalid. However, where there is evidence that the deceased was pressured, manipulated or unduly influenced into making or changing their Will, the Court has the power to set it aside.

What is undue influence?

A person is free to leave their estate to whoever they choose, even if that decision disappoints family members.

However, the law draws a clear distinction between:

• genuine persuasion;

• affection or gratitude towards a carer; and

• undue influence, where the person's free will has effectively been overborne.

The Court will intervene where a Will is not truly the independent decision of the will-maker.

Why are carers often scrutinised?

Many carers provide invaluable support and care, often becoming like family to the person they assist.

However, concerns can arise where a carer:

• isolates the deceased from family or friends;

• arranges appointments with solicitors;

• is present when instructions for the Will are given;

• controls finances or medication;

• receives a significant or unexpected benefit under the Will; or

• is involved in preparing or storing the Will.

None of these factors alone prove wrongdoing, but together they may justify closer examination.

Capacity and influence often overlap

In many disputed estates, allegations of undue influence are accompanied by concerns about testamentary capacity.

For example, if the deceased suffered from:

• dementia;

• Alzheimer's disease;

• cognitive decline;

• confusion following illness; or

• medication affecting judgment,

the Court may carefully consider whether they truly understood the nature and effect of the Will and whether they were vulnerable to influence.

Evidence is critical

Successful challenges are rarely based on suspicion alone.

Evidence may include:

• medical records;

• solicitor file notes;

• witness statements;

• text messages or emails;

• financial records;

• evidence regarding who arranged the Will; and

• evidence of the deceased's relationship with family members before the Will was changed.

Often, the solicitor who prepared the Will becomes an important witness.

Every unusual Will is not an invalid Will

It is important to remember that people are entitled to make decisions that others may consider unfair.

A parent may intentionally leave more to one child.

Someone may choose to reward a devoted friend or carer.

The Court does not decide whether a Will is fair, it decides whether it reflects the genuine wishes of the deceased.

What should you do if you have concerns?

If you believe a loved one's Will was made under suspicious circumstances, it is important to obtain legal advice as early as possible.

Depending on the circumstances, there may be options to:

• investigate the circumstances surrounding the Will;

• obtain the solicitor's file;

• request medical records;

• challenge the validity of the Will; or

• bring a Family Provision Act claim if you have been left without adequate provision.

Each case turns on its own facts, and early advice can help preserve evidence and clarify your legal options.

How Legato Law Can Help

At Legato Law, we regularly advise clients in relation to contested estates, including allegations of undue influence, lack of testamentary capacity, suspicious circumstances and Family Provision Act claims throughout Western Australia.

If you are concerned that a loved one's Will may not reflect their true wishes, or you have been left out of a Will unexpectedly, we can provide practical advice about your options and the likely prospects of success.

Contact Legato Law to arrange an initial consultation and discuss your circumstances in confidence.

This article is intended as general information only and is not legal advice. Every estate dispute is different, and legal advice should be obtained based on your individual circumstances.