Challenging or defending a Will – Suspicious circumstances or lack of knowledge and approval

25/11/2019

In many cases where undue influence is alleged, even if it is not fully made out, the facts might be sufficiently suspicious to cast on the person alleging the Will is valid, an onus to remove such suspicion by clear and affirmative proof of knowledge and approval by the Testator of the Will.

The principle relating to suspicious circumstances was stated by a’Beckett J in In re Nickson, deceased [1916] VLR 274 at 281:

“There is one rule which has always been laid down by the Courts having to deal with Wills, and that is that a person who is instrumental in the framing of a Will, and who obtains a bounty by that Will, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the Will is read over to the Testatrix, and that she was of sound mind and memory and capable of comprehending it. But there is a further onus upon those who take for their own benefit after having been instrumental in preparing or obtaining a Will. They have thrown upon them the onus of showing the righteousness of the transaction: Fulton v Andrews [1875] LR 7 HL 448.”

In Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, Brereton J considered this from [96] to [112].

In Tobin, counsel for the persons challenging Will put their argument as follows:

“In this case, we submit, that if it is necessary to go further than raise a suspicion such that we must identify about what the suspicion is of, we describe it as follows — that the Will was secured by an influence which was not physically coercive (and may not even have been fraudulent in the classic sense), but which was beyond lobbying and was undue in that it had the effect by coercive conduct, of overpowering the volition of the Testatrix. Put specifically Lily was in a controlled and emotionally oppressive and abusive relationship with her son Albert, such that she would comply with his wishes to leave her Estate as he chose and contrary to the way that she had chosen in the past and would have chosen if acting of her own volition.” [96]

His Honour held at [97]:

“This raises for consideration the relationship between “knowledge and approval”, which the proponent of a Will must establish (albeit, absent suspicious circumstance, aided by a presumption), and “undue influence”, a defence to be made out by an opponent.”

The proponent of a Will bears the onus of establishing that the Testator knew and approved the contents of the Will.

Ordinarily, knowledge and approval is inferred from proof of testamentary capacity and due execution – generally, a capable Testator’s due execution of a Will that is rational on its face is sufficient evidence of his or her knowledge and approval of its contents: Re Hodges; Shorter v Hodgers (1988) 14 NSWLR 698.

However, “where there are “suspicious circumstances” — typically, but no means uniquely, where a beneficiary is involved in giving instructions for the Will — there is no such presumption, and the proponent must remove suspicion by affirmatively proving, “by clear and satisfactory proof”, that the Testator knew and approved the contents of the Will, so as to “judicially satisfy the Court that it contains the real intention of the Testator”. This is a heavy onus …”: [98]

His Honour held at [101]:

“That the concept of “knowledge and approval” is concerned with the contents of the Will, and that the relevant suspicion must be one that they do not accord with the Testator’s intention, appears from many authoritative statements of what a proponent must prove when suspicious circumstances are raised. …”

Watson & Watson are happy to consider whether you have a claim to challenge a Will on the grounds of suspicious circumstances, or that there was a failure by the Testator to approve its contents.

If you are an executor named in a Will, and there is an assertion that the Will is bad because of suspicious circumstances, we are also happy to advise you.  Please contact Justin Conomy Special Counsel or Shereen Da Gloria Personal Assistant to discuss your concerns and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.