Does a secret will beat other wills?
It happens all the time in whodunit novels and movies. Someone dies and when the family gather to hear the will read by the family solicitor, they are shocked to discover there was a secret will besides the one they had been told about.
This surprise secret will cuts out those who expected to inherit the estate, or at least diminishes the size of their inheritance. Instead, it leaves the fortune to someone they don’t think deserves it.
So, does a secret will beat other wills? What does a secret will have to have to make it legal? Can those who missed out contest the secret will?
Secrecy of a will has no bearing on its validity
The law says that as long as a will is drawn up legally with the required witness signature and has the most recent date on it, it doesn’t matter whether it has been kept secret from the family or not.
If it is a legal will and was dated after any other wills, then it is the one that applies.
Grounds for challenging a secret will
A will can be challenged by those who feel aggrieved.
There are two grounds on which a will can be challenged – validity and fairness.
A solicitor specialising in wills would be asking whether it was drawn up legally, without undue influence or duress. Was there a lack of testamentary capacity? Was there fraud or pressure? Was the will properly signed and witnessed? Did the will-maker know and understand what he or she was signing?
There is also a provision that not many people are aware of, and that is that a will can be revoked if the person has married since the will was signed.
A wills specialist would also examine the will’s fairness. Does it provide adequately for a child, spouse or dependant? Is it ambiguous? Can a partner prove they were de facto? What about someone the deceased person has been supporting – does that continue?
Legal requirements for challenging a will
Under the NSW Succession Act, a will has to be challenged within 12 months of the death.
Those who can challenge a will include the spouse, biological children, carers, former spouses or de factos and grandchildren.
Those who can establish they were members of the household and were either wholly or partially dependent on the deceased, and were owed an obligation to be provided for in the will, can also challenge.
The financial needs of a claimant are considered by the court, but adult children who are financially secure are less likely to win a challenge to a will, whether it is secret or not.
About 45 per cent of Australians don’t have a valid will. For those without a will, their property and assets will be distributed according to a legislated formula laid out in the Succession Act.
This places spouse, children and dependents first, but it gets more complicated if there are ex-spouses and children from a previous relationship. (For further information please see Contesting a will in NSW – the horror story edition.)