Challenging a Will
Do you suspect that a sibling has influenced a parent in making their last Will?
Wills are frequently challenged in the courts on one or more grounds.
Often times, those grounds of challenge overlap.
Commonly-an unholy trinity of factors are alleged:
- Lack of capacity,
- lack of knowledge and understanding and
- Undue influence.
Recent Decision
The recent decision of Chalik v Chalik [2025] NSWCA 136 highlights the multitude of ways in which a Will can be challenged.
Broadly speaking, the matter involved two brothers and an elderly mother with Dementia, who’s last Will (unlike her penultimate one) left her entire estate to one brother.
The Facts
- In 1998 Mrs Margaret Chalik made a Will (the 1998 Will), leaving her Estate to her two sons, Mr. Gregory Chalik (the applicant) and Mr. Isaac Chalik (the Respondent) in equal share. The NSW Trustee was appointed as executor under the 1998 Will.
- Evidence was put before the court that in as early as 2010, Mrs Chalik was having trouble dealing with her finances and suffering from forgetfulness and confusion.
- In 2011, during a hospitalisation, Mrs. Chalik’s admission forms stated that she was confused about how she got there and why she was visiting the hospital. One of the notes taken by a treating practitioner included: “deteriorating cognition(?dementia)” and “acute deterioration in mental state.” Chalik ultimately left the hospital without being discharged.
- In 2012, Mrs Chalik’s mental state had been listed as “cognitively impaired” under an “Abbreviated Mental Test” provided by a doctor.
- By April 2013, Mrs Chalik was accompanied by her son Gregory to sign her final Will with a solicitor. The 2013 Will appointed Gregory as sole executor and left him the entire Estate, to the detriment of Isaac.
- The Solicitor that witnessed the 2013 Will did not keep file notes of the attendance, but observed that Mrs. Chalik initially could not recall why she was at a lawyer’s office, and that she appeared to “look to Gregory for reassurance.”
- During the attendance, the solicitor and Mrs. Chalik spoke Yiddish, which was not the native language of either party.
- Gregory sought probate of the 2013 Will in solemn form.
Testamentary Capacity to make a Will
Justice Henry made the following findings:
There are four main inquiries that assist a court in determining whether Testamentary Capacity existed at the time a Will was created. These are:
- the capacity to understand the nature of the act of making a will and its effects
- the capacity to understand the extent of the property the subject of the will;
- the capacity to comprehend moral claims of potential beneficiaries; and
- the absence of mental disorders or delusions which affect the testator’s “mental faculties [so as] to make them unequal to the task of disposing of their property”
(“the Banks and Goodfellow elements”)
From around 2010 until her death in 2021, the responded produced evidence, which the court accepted, of Mrs. Chalik’s declining mental state. The evidence predominately came from treating practitioners, hospital staff, aged care staff and lay people including neighbours. This included that:
- Chalik had lost capacity to manage day to day activities such as grooming and food preparation;
- She was repetitive of questions and forgetful;
- On one occasion, she could not recall how she got to hospital upon presentation;
- She exhibited paranoia that a person known to her was trying to kill her and take away her home; and
- She refused treatment and absconded from hospital on one occasion.
Relevantly, evidence from lay people (those close to the deceased such as carers and uninterested family members) is just as relevant to questions of mental capacity as medical evidence. The fact that a person dies with Alzheimer’s disease or dementia does not in and of itself establish a lack of mental capacity.
Decision
The Court refused the application for probate on the final Will, finding that:
- The Deceased did not have the requisite legal capacity to make the Will in 2013;
- The Deceased would not have had knowledge and approval of the contents of the Will; and
- The Deceased had been unduly influenced by the Applicant.
Knowledge and Approval of the Contents of the Will
A discrete (and yet overlapping) requirement of a valid Will is that the testator knew and approved of the contents of the Will. Henry J observed that the simpler the Will, the more easily it might be established that a testator knew and approved of its contents.
The most straight forward way to prove Knowledge and Approval is diligent note taking and evidence of instructions to and from the draftsperson and witness of the Will. This may be as simple as a file note from the attending solicitor stating:
“I read each paragraph of the Will back to the testator and he/she was happy with the contents”
Extrinsic evidence of testamentary intention can also assist a court in being satisfied of knowledge and approval. This could include a letter prepared or signed by the testator which confirms the contents of their Will.
The court did not accept the authenticity of a statement from September 2013 (five months after the date of the Will) which purported to explain Mrs. Chalik’s decision making. Henry J found:
[327] I am simply unpersuaded by Gregory’s evidence that the deceased played any part in the preparation of that document.
In the present case, Mr. Gregory Chalik could not produce any evidence to discharge the onus of establishing knowledge and approval of the deceased’s 2013 Will. The Solicitor that prepared and witnessed the Will did not keep file notes, and in fact recognised the deceased’s reliance on her son.
Her Honour concluded on the issue of Knowledge and Approval:
[337] In this case, I consider that there are reasons to doubt whether the deceased knew and approved the terms of the 2013 Will. The existence of the deceased’s cognitive impairment, the fact that the will was explained to the deceased in Yiddish and she did not read over it, and Gregory’s involvement in the making of the will, including arranging for the deceased to see Mr Wermut and join the execution meeting, are matters that excite suspicion in this case.
Undue Influence
Isaac Chalik claimed that undue influence should be inferred in the circumstances, which was accepted by Henry J, even in the absence of direct evidence of pressure or coercion by Gregory. Her Honour found:
[326] In my view, by April 2013, the combination of the deceased’s age, the degree of her cognitive impairment and her physical health issues meant she was not capable of standing up to pressure imposed by others, particularly Gregory, on whose care she relied on. The significance of this is that she was also likely incapable of evaluating the strength of Gregory and Isaac’s claims to her estate.
[354] As a consequence, the deceased’s own will was likely overborne by Gregory and she did not make a free and fully informed decisions when she made the 2013 Will. This represented practical coercion in my view. In coming to that view, I am informed by the contemporaneous records that paint a picture of Gregory as someone who was controlling of the deceased.
Summary
Challenging a will is a complex matter and involves having a clear picture of key and relevant facts surrounding the making of the will, from the time instructions are given to the actual signing of the will. A drastic change from a prior will where one party misses out entirely may also be extremely important.
Strict time limits apply so delay can be fatal to a challenge.
If you or someone you know suspects that a sibling may have influenced a parent’s Will, get in contact with Michael Sing at Rostron Carlyle Lawyers today to discuss your options.
The blog published by Rostron Carlyle is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Rostron Carlyle on any legal queries concerning a specific situation.
