The Significant Life Changes series.

At Law, what are ‘suspicious circumstances’ regarding the creation of a Will?

Can such suspicious circumstances invalidate a Will?

Do you have a mature family member that might be easily misled or influenced with regard to their Estate Planning? Could they be taken advantage of, coerced, or unduly influenced into executing a Will that disposes of their assets in a way contrary to their actual wishes?

There is a legal presumption a Will is valid if:

1. the Will has been properly signed and witnessed by two witnesses present at the same time.

and

2. the Will is ‘rational’ on its face.

However, if the Court is of the opinion that circumstances exist in the creation of the Will that give rise to a ‘suspicion’ that the terms of the will do not accord with the testamentary intention of the testator, then the Court will not admit the Will to probate and may invalidate the Will, unless that suspicion is removed and the Court is satisfied the testator ‘knew and approved’ of the contents of the Will.

What do suspicious circumstances mean?

The degree of suspicion will vary depending on the circumstances of each matter. Examples may include the following:

• the testator was elderly and/or suffering from a condition that may have impacted the testator’s testamentary decision making
• the testator was living alone, and was not in regular contact with family members, but was in regular contact with the person who became the principal beneficiary under the Will
• the testator did not give the instructions for the draft Will and the party who takes a significant benefit under the Will, prepared, or procured the Will
• where the testator did not read English and there is no evidence that the Will was translated into the language spoken by the testator
• where the testator was blind and there is no evidence that the Will was read to the testator
• where the Will is very complex and there is no evidence that it was explained to the testator and the testator understood the explanation
• where a testator has omitted a significant beneficiary from the Will without explanation who, objectively viewed, would reasonably have expected to receive a testamentary gift

Suspicious Circumstances Doctrine:

Suspicious Circumstances are circumstances that cast doubt on whether the Testator had Knowledge and Approval of the contents of the Will.

The ‘suspicious circumstances’ doctrine operates to displace presumptions of fact in favour of those propounding the Will. With respect to the presumption as to knowledge and approval, those circumstances must be capable of throwing light on whether the testator knew and approved of the contents of the Will. If they give rise to a doubt as to knowledge and approval, those propounding the Will must dispel that doubt by approving affirmatively that the testator appreciated the effect of what he or she was doing.

Where a Will is duly executed a presumption arises that the testator Knew and Approved of its contents. However, extenuating facts or circumstances may exist even in cases where the Will has been read over by, or to, the testator. In the case of Astridge v Pepper [1970] 1 NSWR 542, evidence existed that even though the 99-year-old testatrix appeared to have read the Will, the Court found suspicious circumstances in the fact that she was not capable of reading and understanding the document.

In the case of Tobin v Ezekiel [2011] NSWSC 81, the Court considered the complex relationship between knowledge and approval and undue influence and fraud. The Court said the concept of knowledge and approval is concerned with the contents of the Will, and whether it expresses the testator’s intention, and not with the process by which the testamentary intention was formed. Therefore, any relevant suspicion must be one that casts doubt on whether the testator knew and approved the contents and must relate to the preparation and execution of the Will. Suspicion of fraud or undue influence does not attract the ‘suspicious circumstances’ doctrine, those being affirmative defences which assume that the testator knew and approved the contents but challenge how that intention was procured.

In another recent decision of the Court of Appeal in Church v Mason [2013] NSWCA an elderly testator made and executed a Will in circumstances arousing suspicion. Facts included that the beneficiary of the Will was with the testator and telephoned the solicitor when the testator advised him, he wished to make a Will to nominate the beneficiary as both executrix and beneficiary. Further, the beneficiary had prepared a typewritten document which she showed to the testator, in the form of a draft Will with four alternate suggestions. Her evidence was that she read each of the suggestions to the testator and asked him for a response. After he responded ‘ok’ to the second suggestion (by which she received the whole estate), she gave him the document which he then signed.

The document was not mentioned in the beneficiary’s initial affidavit in the proceedings.

In its decision, the Court said that particular vigilance is required where a person who played a part in the preparation of the Will takes a substantial benefit under it.

UNDUE INFLUENCE

In relation to a Will, Undue influence involves the exploitation of the testator via a relationship of influence.

If undue influence is suspected, the complainant must contest the Will in court after the testator dies. The complainant will need to show that:

• illness or frailty left the testator vulnerable to undue influence
• the will assigned property in a way that was unexpected in the circumstances
• the testator was dependent on or trusted the person who exerted the undue influence
• the person took advantage of the testator and benefited from the distribution of assets under the will.

Generally, in probate matters, undue influence is akin to coercion. In the leading British case of Wingrove v Wingrove, which has been endorsed by Australian courts, the judge stated: “The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may become so weak and feeble that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage or illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion though not actual violence.”

In the case of Nicholson v Knaggs (2009) the will of 84-year-old testator Betty Dyke, who was suffering dementia, who died in 2004 having almost $16,000,000 in assets, was examined. Initially, in 1985 Ms Dyke made a Will leaving the bulk of her estate to several charities. In 1999 and 2001 she made two more wills which were considerably different from the 1985 Will. The later Wills left the bulk of her estate to three groups of neighbours and slashed the amount of money to be donated to her nominated charities. The court ruled two of Dyke’s neighbours had exerted Undue Influence when Ms Dyke created her later Wills.

In the case of Birt v The Public Trustee of Queensland [2013] Undue Influence was involved in the making of the Will of 86-year-old testator Patricia Brooks. Brooks, who suffered from dementia, died in 2010, survived by two daughters and a son. A Will made in 2004 left her entire estate to her son, with a gift to one daughter. Whereas the previous Will made in 1990 had left her estate to her children in equal shares. The sisters argued that their brother, who lived with their mother, exerted Undue Influence over their mother via behaviour that included verbal abuse, bullying and letting friends steal from her. The judge ruled there was no evidence that the brother had convinced their mother to change her Will to leave her entire estate to him.

Establishing that a testator has been Unduly Influenced:

It should be noted that in order to establish that a testator has been unduly influenced:

• circumstantial evidence is not enough.
• you must be able to prove actual Undue Influence /Coercion, and
• it is not enough to show that a person had the power to overbear someone – you will need to show that they actually exercised that power and that it resulted in the production of a Will that is not what the testator wanted.

The Court will then examine and determine each allegation of Undue Influence based on consideration of all the circumstances of the matter.

Conclusion:

The Suspicious Circumstances rule operates to require the party propounding or defending a will to affirmatively prove that the testator had capacity and/or knew and approved the contents of the will, instead of being permitted to rely on the presumptions raised from due execution and the rationality of the Will. The evidence required to dispel a ‘suspicion’ will depend on the circumstances of the case. The Courts have held that: ‘In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.’

The importance of specialist advice in Estate Planning is clear.

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