Will Writing – How Difficult Is It to Prove Coercion?

Law Blog

It is not unusual for individuals to contest somebody's last will and testament. A person can question the document and wonder why they were not included as a beneficiary, or they can challenge the entire will on the basis of diminished capacity. Occasionally, somebody may bring a serious charge to allege that coercion was involved and that an individual with access to the departed made them change the will's content to their benefit. If you are in such a position and believe that coercion was indeed involved here, what do you need to do next?

Uphill Task

The first thing to bear in mind is that this type of charge is very difficult to prove. Very few people have been successful in Australian courts, and the legal system certainly places the onus on the plaintiff in this scenario.

The Onus of Proof

The court must be satisfied with the standard of proof provided. It needs to go into great detail and establish, beyond a reasonable doubt, that there was probably interference in favour of the person involved. It's simply not good enough to determine that the person in question had some power over the will make, even though they may have had extensive access to the departed and had the opportunity to talk about these matters extensively. There may even be a certain amount of suspicion involved, but that is not enough to establish absolute coercion. The court will never presume undue influence but will always look very closely at any evidence provided.

A Matter of Definition

Some people may bring a case that claims a beneficiary influenced or tried to persuade the willmaker to take a certain action. Whether this is true or not, they would still need to prove that the willmaker only made changes to the document because they felt pressed to do so. The simple exchange of positions or a conversation, as persuasive as this may be, is once again not sufficient to prove coercion. After all, the willmaker is perfectly free to accept or reject any advice or persuasion, even if it is delivered under a certain amount of pressure. It's always up to the court to determine whether the action was legitimate persuasion or outright coercion.

Legal Support

If you want to proceed with this case, you will certainly need to provide detailed information and evidence in support. You should undoubtedly talk with an experienced solicitor first, and they can help you to gather that documentation and put everything forward as effectively as possible.

Contact a local contested wills lawyer if you think you have a case.


27 October 2021

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