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A Battle of Wills: David Rofe’s 25 Wills Suggest Scope for Numerous Challenges

David Rofe, the well-known Sydney based barrister, died in July 2017 leaving an estate estimated at $30m. He was unmarried, childless and for the past seven years suffered from dementia. Apparently, he also produced 25 Wills, most of which came after his initial diagnosis of dementia in 2010. This seems likely to signal a battle of the Wills to determine how the proceeds will be distributed.

All the facts have yet to emerge, of course, but various press reports have highlighted a number of areas and a mass of protagonists between whom these battles may be played out in the courts. And, for example, The Australian (2 August 2017) quoted a friend of Mr Rofe describing him as ‘vulnerable and lonely’, and ‘preyed upon’ for ‘monetary benefit’, suggesting potential grounds for challenges.

According to press reports, there are potentially a number of claimants, some of whom benefit from Rofe’s final Will of December 2014, and others who were removed entirely from earlier Wills or with reduced inheritances. Rofe was reportedly in an advanced stage of dementia when he signed the last Will. Normally Wills are taken in chronological order but the circumstances suggest a legal dispute involving the potential claimants, some of whom (though not necessarily a comprehensive cast) are briefly referred to below.

Initially, the focus may fall on Kathy Jackson, who is due to receive in excess of $3m, and her role as co-executor to Mr Rofe’s estate. Ms Jackson, it is understood, first appeared in the Wills in April and May 2013 as the beneficiary of $450,000 but over the next few months the amounts were revised upwards and she was appointed as co-executor. In July 2014, a codicil to the Will substantially reduced her share and removed her as an executor but his last Will then restored her position. The challenge to Ms Jackson will depend on the validity of the last Will, which Rofe is understood to have signed in the presence of Ms Jackson and her solicitor as a witness. Ms Jackson is bankrupt, facing charges of theft, and is said to owe a substantial sum to her former employers who wait in the wings.

Nick Llewellyn is a long-standing acquaintance of Mr Rofe. According to reports, he lives in a Gold Coast apartment owned by Rofe at a peppercorn rent of $1 a month and was receiving $10,000 a month for his upkeep. He has claimed in the past that Rofe had long promised to buy him a home following a personal and financial relationship since 2002.

Another long-time friend, Mr Hele, due to receive 20% of the estate ($6m), lived with Rofe for the last three years of his life serving as his carer.

Another former companion and friend, Ms Clark, was due to inherit half of his estate in his 2006 Will but was later written out only to be written back in in the last Will to the extent of $600,000.

Although he had no spouse or children, Rofe had several nephews and nieces some of whom have apparently appeared in Rofe’s various Wills.

It is understood some potential beneficiaries claim the Will signed in 2006, before Rofe’s dementia emerged, is the best representation of his wishes suggesting a challenge to the later Wills.

It may be noted, in this context, that those entitled to make a claim under the Succession Act 2006 include not just spouses and children but also anyone who was wholly or partly dependent on the deceased and anyone in a ‘close personal relationship’ with the deceased at the time of death.

Eligibility and grounds for contesting a Will

As detailed in our separate blog The Complete Guide to Challenging a Will in NSW there are broadly two classes of persons having the necessary ‘standing’. These are the beneficiaries in the Will and anyone who would stand to inherit if the Will was invalid i.e. those who have been excluded from inheritance.

The grounds for challenging a Will include circumstances where it is seen as ‘grossly unfair’ i.e. where a person had been left out of the Will who was dependent on the deceased or should have inherited.

Importantly, a lack of mental capacity (‘testamentary capacity’) means the Will-maker does not have the ability to make a Will. Where there is doubt as to capacity, medical reports at the time of executing are important. Clearly this will be of particular importance in Rofe’s case, especially bearing in mind the frequency and variability of his Wills. It should be noted, however, that a person suffering from dementia can execute a valid Will during lucid periods so they may not necessarily be invalid simply because of his dementia.

Initially the onus is on the person trying to prove the Will to show that the Will was duly legally executed and there are no ‘suspicious circumstances’. Once this is proven, the onus is then on the party seeking to disprove the Will-maker lacked the requisite intention to create a Will when executing it.

Without suggesting these are relevant to the Rofe case, other grounds can include undue influence, fraud, forgery or duress.

Where a person who assisted the deceased in drawing up the Will stands to gain from the Will then they may be required to prove that there was no pressure applied. Undue influence can, however, be difficult to prove without reliable witnesses, and the alleged coercion must be such that it made the deceased do something that they did not want to do.

Fraud can occur when the Will-maker is tricked into signing a Will, perhaps thinking it was something else. Duress is coercion usually involving the threat of physical harm.

It will be of interest to see how this scenario of numerous Wills, dementia and potential claimants, unfolds.

Contact our Expert Wills Lawyers Surry Hills, Sydney

If you are considering contesting a Will, please contact Szabo and Associates, Solicitors to discuss your case with our experts in Sydney today. Call us on 02 9281 5088 or make an online enquiry.

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