Has someone close to you made a will lately? Perhaps it was a DIY will, or they are an elderly relative and you are concerned about their capacity to make the correct decisions?

While we all free to leave our estate to anyone we want, under Victorian law the courts can intervene on certain grounds. Wills must make adequate provision for those the will maker is responsible for.

A number of safeguards also exist to ensure that people – especially those with a disability or who rely on others for assistance – can make wills that reflect their true wishes.

In addition to complying with the necessary formalities of a will, the person making the will must be of a sound mind, memory and understanding when the will is made.

Secondly, the will-maker must not be subjected to the undue influence of other people (particularly potential beneficiaries), and thirdly, they must be able to properly approve, and understand the contents of, the will that is made.

If any of these safeguards are absent, the will can be declared invalid on the grounds that it doesn’t reflect the true wishes of the person making it.
In a recent case before the Supreme Court of Victoria, Nicholson & Ors v Knaggs & Ors [2009] VSC 64, the Court dealt with the issues of whether an 84-year-old woman had the required capacity to make her will (with sound mind) and whether or not there was undue influence by her carers, who were her neighbours.

The Court determined that the woman knew what she was doing when making the wills and they were therefore valid. In examining the issue of undue influence and after examining the evidence, the Court held that all the gifts to the three neighbourly couples, except the one made to the partner of the woman’s main carer, were valid.

The Court heard that the main carer may have exerted influence on the woman’s lawyer to have her husband included in the will. It determined that, because of this possible undue influence, the gift to the husband failed.

A will is an important document that enables you to make valuable decisions about your property upon death. Do not treat will making lightly. If in doubt, contact your lawyer for advice.