Matters affecting the validity of a will: "Knowledge and approval" and "suspicious circumstances"

Wills may be challenged on various grounds including revocation by a later Will or informal testamentary document, claims by disappointed family or other persons seeking a family provision order under Chapter 3 of the Succession Act 2006, or on grounds attacking the validity of the Will itself and the circumstances in which it came into being.

The grounds affecting validity comprise mainly:

1. Lack of testamentary capacity;
2. Lack of knowledge and approval of the contents of the Will;
3. Undue influence;
4. Fraud; and
5. The operation of the forfeiture rule.

Below we discuss the requirement of the knowledge and approval of the contents of a Will by the testator or testatrix (the Willmaker). The Court will not grant probate of the Will if there is evidence that the contents of it were not known and approved by the testator. If only certain parts were not known and approved, a grant of probate will be made excluding those parts.

Due execution and the presumption of knowledge and approval

The due execution of a Will raises a presumption that the testator knew and approved of its contents. Where it is established that a Will has been read by or to a testator, the presumption that the testator knew and approved of the contents is a very strong one and can be rebutted only by the clearest evidence.

It is not conclusive evidence however that if the Will has been read over by, or to, a testator, that he knew and approved of the contents.

For example, in Astridge v Pepper [1970] 1 NSWR 542, although there was evidence that the testatrix (aged 99) had appeared to read the Will, the Court found she was not capable of reading and understanding the document. In that case, the terms of the instructions given to the solicitor who prepared the Will were critical. As there was only evidence the testatrix knew and approved of a limited portion of the Will, a grant of Letters of Administration was made only in respect of that portion.

“Suspicious circumstances” casting doubt on whether there was knowledge and approval

The fact that a Will has been prepared by a beneficiary will raise the suspicion as to whether the testator knew and approved of its contents.

In Tobin v Ezekiel [2011] NSWSC 81, one of the grounds raised was lack of knowledge and approval, and the Court considered the doctrine of “suspicious circumstances”, its relationship between knowledge and approval and undue influence and fraud. In that case, at first instance the Court said:

“In my view, however, (1) the concept of knowledge and approval is concerned with the contents of the will, and whether they express the testator’s intention, and not with the process by which the testamentary intention was formed; (2) 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, and (3) 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 (in a sense that he or she intended to make a will in the form in which it was made) but challenge how that intention was procured.”

On appeal, the Court of Appeal said that it was correct to proceed on the basis that the suspicious circumstances rule does not operate at large, but 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.

The order in which these matters are to be dealt with by the Court was first the issue of suspicious circumstances and then affirmative proof of knowledge and approval.

A recent decision of the Court of Appeal in Church v Mason [2013] NSWCA concerned a Will of an elderly testator made and executed in circumstances arousing suspicion.

There were a number of facts which were found to be suspicious circumstances. These included the fact 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 and 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 4 alternate suggestions. Her evidence was 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 signed.

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

In the Court below it was accepted that the circumstance that the beneficiary was instrumental in causing the Will to be made in her favour raised a suspicion concerning the testator’s knowledge and approval and displaced the presumption to that effect otherwise arising from proof of testamentary capacity and due execution. It was therefore necessary for the beneficiary and sole executrix to prove affirmatively that the testator knew and approved of the contents of the Will.

On appeal, it was submitted that the judge in the Court below had erred in the following respects:

1. He did not take into account as a circumstance which excited suspicion the fact that the testator was 88 years old, suffered from memory loss, dementia, Parkinson’s disease, disorientation, confusion, fatigue and an inability to speak;
2. He did not adequately review and weigh the evidence directed to the testator’s knowledge and approval of the contents of the Will; and
3. He failed to give sufficient weight to a number of matters such as that the services of the solicitor were procured by the beneficiary, there was no satisfactory explanation for the testator’s change of mind between 7 and 11 August 2009 as to the need to make a Will, that his instructions given on 11 August 2009 were given over the telephone and in the presence of the beneficiary, on the day the Will was executed the beneficiary had been with him until the solicitor arrived and thereafter remained in the vicinity, that the beneficiary stood to receive a substantial benefit under the Will and that there was no rational reason why the other potential beneficiary should have been excluded.

The Court of Appeal said that what is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case. These may include the mental acuity and sophistication of the testator, the complexity of the Will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim on the testator and whether there has been an opportunity in the preparation and execution of the Will for reflection and independent advice.

The Court said:

“Particular vigilance is required where a person who played a part in the preparation of the Will takes a substantial benefit under it.”

The Court of Appeal determined that in the circumstances of the case the fact that the Will was read aloud was persuasive and entitled to significant weight; and the Will was in simple terms. There were only 2 persons having an immediate call on the testator’s bounty and the Will left everything to one of those persons. It was consistent with the prior instructions the testator had given, and the claim by the other beneficiary on his estate was brought to the testator’s attention. On that basis the appeal was dismissed.

This article was written by Matthew Payne, Partner and Christine McPhilips, Special Counsel.

Publication Editor: Matthew Payne, Partner and Philip Davis, Special Counsel.