It is not uncommon for concerns to be raised regarding the validity of a Will after someone has died. It can be particularly concerning when the will-maker is an elderly or vulnerable person that has made a new Will shortly before their death in significantly different terms to their prior Wills. Sometimes, their long held testamentary intentions are completely abandoned.

Sudden changes to the terms of Wills can include a child or children being left out of the last Will, different relatives receiving much larger shares of the estate, and carers who were never previously included in any Wills becoming a major beneficiary. Situations such as these may prompt legitimate enquiries to be made regarding the validity of the last Will.

Before embarking on litigation, however, it is important to understand what the Court will consider to constitute suspicious circumstances. The legal meaning of this phrase is not the same as how you may use it in ordinary everyday conversation.

Judges have described the doctrine of suspicious circumstances in different ways, but generally, it is expressed in terms of the need to examine the circumstances surrounding a person who benefits under the Will being heavily involved in the preparation of the document. The Court is primarily concerned to ensure that the person making the Will knew and approved of the contents of the document, and that of their own free will, declared the document to be a true representation of their last wishes.

In the recent Supreme Court of NSW decision of The Estate of Blanche Minnie Condon [2020] NSWSC 19, the Court was asked to consider suspicious circumstances in relation to the involvement of the beneficiaries in the preparation of the deceased’s Will. One of the beneficiaries arranged a solicitor to attend on the deceased and was present when instructions for the last Will were given. Ultimately, the allegations of the Will being invalid were held to be unfounded and the last Will was declared valid. The Court re-stated common principles to the effect that:

  • Where testamentary capacity is called into question it is for the executors to prove the document was the last will of a ‘free and capable testator’ who ‘knew and approved of its contents’ at the time of giving instructions.
  • Understanding the contents of the Will means the testator understands its effects and consequences.
  • Where a person has assisted in the preparation or execution of a Will in which they are likely to receive a benefit, they will have the burden of showing the ‘righteousness of the transaction’. In other words, they will be required to show their actions had no influence over the contents of the Will or any decision of the Will-maker to alter or create their Will.

In the above decision, the Court also contemplated whether the deceased’s statement that she kept her Will under the cats’ bed was sufficient to raise a doubt as to her testamentary capacity.

Upon reviewing the evidence, the Court was satisfied that the solicitor that prepared the Will had performed the appropriate steps in verifying the Will-maker had the requisite knowledge and approval of the contents of the Will. This was important as the usual presumption that the Will-maker had testamentary capacity when preparing and executing their Will applied.

To a large extent, the suspicion raised regarding the beneficiary’s involvement in the preparation of the Will was displaced as a result of the due diligence performed by the solicitor when taking instructions from the deceased.

In order to ensure your last wishes are carried out, and your Will is able to be proven to be valid, it is important to instruct an experienced and diligent lawyer. Our solicitors are trained and skilled at ensuring your wishes are protected and recorded in such a way that your intentions are well protected.

If you would like assistance preparing your Will, or you would like to discuss any concerns you may have regarding Will & Estate matters, do not hesitate to contact Turner Freeman Lawyers on 13 43 63 or via our online enquiry form.