Complexities with Will Making – Suspicious Circumstances

The NSW Court of Appeal recently upheld an appeal relating to a disputed Will.  In broad overview the case was not dissimilar to many others. The deceased had made two Wills; one when she was clearly in good health and a second when in poor health and shortly before her death.  The second Will substantially varied the first one; and was made in circumstances where there were doubts as to her legal capacity to change her Will.

Additionally, and relevantly for this article, there were a number of "suspicious circumstances" surrounding the making of the second Will.  It was those circumstances that was the focus of the litigation.

The Will maker was Nadia Mekhail.  Under her first Will she had left gifts to her husband (who had since died); to churches, and to some nephews.  Under second Will she left her entire estate to Georgette Hana, described as her "daughter".

As it transpired, Georgette was not her daughter and was no relation at all.  The solicitor that drafted the Will received his instructions from Georgette's son.  The solicitor had never previously met Nadia.  The son lied about the familial relationship between Nadia and Georgette.  In addition to making the Will, the solicitor prepared a Power of Attorney in favour of Georgette.  She was not entitled to benefit herself under the Power but, despite that, proceeded to transfer Nadia's house to herself, prior to Nadia's death, for only $1.00.

The trial Judge, in a very long judgment, acknowledged that there were suspicious circumstances associated with the second Will (and therefore held that Georgette had to satisfy the Court there was a proper explanation for those suspicions); but ultimately concluded such an explanation had been given).  The second Will was upheld.

That decision was reversed on appeal.  A central reason for the reversal was that the trial Judge did not properly consider the full extent or the "quality" of the suspicions associated with the second Will.  Consequently, he was not properly able to assess whether Georgette had properly explained all of those suspicious circumstances.  Relevantly, the trial Judge only specifically referred to two suspicious aspects; whereas the Appeal Court considered that there were many more that had not been expressly considered. 

A key witness in Georgette's case was the solicitor who made the Will.  Despite some difficulties in his evidence, he was accepted as an honest witness and there was no challenge to that finding on appeal.  However it is clear the Appeal Court had real reservations about at least the quality of his evidence.  Amongst other things, he conceded he made a file note of the conference at which the Will was signed but he later destroyed it and made a "replacement" file note which purported to be contemporaneous with the conference although drafted 5 months later. The replacement note was made at a time when the solicitor knew there was a dispute about the validity of the Will (and that Georgette was not Nadia's daughter).  For a range of reasons the Appeal Court considered the file note was, at least, not a comprehensive record of what occurred at the Will making conference. Additionally the solicitor's independent recollection of the conference was somewhat patchy.

Taking all those factors into account the Appeal Court suggested the trial Judge had given too much weight to the solicitor's evidence; and that when properly characterised it did not particularly assist Georgette to establish that Nadia understood and approved the second Will, nor did it dispel various of the suspicious circumstances associated with it.

The successful appellants (two of the nephews mentioned in the first Will) succeeded in "proving" the first Will.  Georgette was required to reconvey Nadia's home from Georgette's name into the estate.  The Court ordered costs against Georgette.

As with many cases involving disputed Wills, to a large degree they turn on their individual facts.  However at least some "learnings" can be taken from this decision:

  • Where there are "suspicious circumstances" associated with a Will, it is important to identify each circumstance individually and for the person seeking to uphold the disputed Will to address each and every one of them, in order to satisfy the Court that the Will should be admitted to Probate.
  • The greater the degree of suspicion, the higher will be the onus on the proponent to explain matters to the satisfaction of the Court.  There is, in effect, a "moral" element which requires a proponent to prove the "righteousness of the transaction" particularly where they are also involved in the preparation of the Will. (In this case, there were unchallenged findings that Georgette's son, to her actual knowledge, had positively lied to and misled the solicitor who made the Will, into believing that Georgette was Nadia's only child and next of kin).
  • For solicitors instructed to make Wills, it is imperative that where there are any doubts about the mental capacity of the Will maker; they not only make quite detailed enquiries about capacity and understanding, but that they also contemporaneously and thoroughly document that process.  (Here, the solicitor conceded his initial file note was brief and "sketchy".  The Appeal Court was ultimately not convinced that the later reconstructed file note was a comprehensive record of what actually occurred when the Will was made.)
  • A solicitor instructed to make a Will should make enquiries both as to whether the client has made any earlier Will (and if so, whether and why the earlier Will has been changed); and as to the testator's family tree (so that proper advice can be given as to whether a testator should consider making provision for other family members or dependants).  (Here, the solicitor said that had he been told the truth about the extent of Nadia's family, he would have approached the Will making process and the advice he gave to Nadia, in a different way.)

Mekhail v Hana [2019] NSWCA 197

 

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