Challenging the Validity of a Will Made Under Suspicious Circumstances

A Will can be challenged on a number of grounds, including the validity of the Will itself. One particular ground affecting validity is the lack of knowledge and approval of the contents of the Will. A Court will not grant probate if there is evidence to show that the contents of the Will were not known and approved by the testator or Will-maker.

The rule of suspicious circumstances

The origins of the rule of suspicious circumstances can be found in the early nineteenth century English case Barry v Butlin (1838). This case referred to circumstances that “ought generally to excite the suspicion of the court”. The rule initially was confined to the preparation and execution of the Will.  Most recently, the NSW case Tobin v Ezekiel (2012) NSWCA 285 broadened the law to include concerns over the contents. Did the Will-maker have adequate knowledge and approval of the contents, and did they truly express the Will maker’s testamentary intentions?

In suspicious circumstances, the so-called “propounder” or defender of a Will (the person putting forward the Will as being valid) must establish that the maker knew and approved of the contents of the Will to dispel the suspicions raised.

The evidence required to set aside suspicions will depend on the circumstances of each case. The suspicion “may be slight and easily dispelled” but “on the other hand, be so grave that it can hardly be removed.”

What do suspicious circumstances mean?

Although there is no strict definition of suspicious circumstances, some that might cause suspicion to arise might include:

• the Will-maker involved was elderly, perhaps living alone, and not in regular contact with other family members;
• in contrast, there has been regular contact with the principal beneficiary;
• an unexplained change of direction in terms of how the estate is to be divided;
• where a child has been disinherited even though there has been no estrangement;
• the Will was instructed by someone other than the Will-maker;
• whether the person who prepared the Will received a substantial gift in the Will;
• English is not their first language;
• where a blind person has not been read the Will;
• a lack of independent advice, particularly if the Will was complex.

Case example: Mekhail v Hana; Mekhail v Hana (2019) NSWCA 197

In this case, the deceased, Nadia Mekhail, had prepared two Wills. One Will was made in 2001 when she was apparently in good health and another in 2014 shortly before her death. The two Wills were completely different. The 2001 Will left $10000 to the Coptic church with the remainder to her husband, or if her husband predeceased her (which he did), to each of 5 nephews in equal shares. However, the 2014 Will left the entire estate to Georgette Hana, described as her daughter, who was also to be the executrix. 

Two of the disinherited nephews decided to challenge the second Will, alleging it had been prepared under suspicious circumstances. These circumstances included:

• the second Will had been drafted on the instructions of Georgette’s son rather than Nadia Mekhail;
• the deletion of gifts to the church was inconsistent with her religious beliefs;
• the instructions for both a new Will and powers of attorney were requested “urgently”;
• shortly after the execution of the Will the estate’s main asset, a property in Strathfield, Sydney, was transferred to Georgette for $1.

If Nadia Mekhail had a daughter and grandson, it might seem strange that they had been left out of the original Will. Indeed, as it transpired, Georgette Hana was not her daughter or, in fact, any relation. The pair had misled the acting solicitor about their relationship to the deceased.

The NSW Court of Appeal found that Georgette Hana failed to provide sufficient evidence to eliminate the doubts concerning the number and quality of the suspicions raised.  The initial trial had only expressly referred to two suspicious aspects, whereas the Court of Appeal considered more that should have been taken into account. The Will was consequently found to be invalid.

Specific learning from this case is that it is evident that each suspicious circumstance must be addressed individually in order to persuade the Court to allow a Will to proceed to probate. Moreover, the more questionable the circumstances, the greater the requirement to provide compelling evidence to satisfy the Court.

What does it mean?

In normal circumstances, knowledge and approval of a Will’s contents are inferred from evidence of testamentary or mental capacity and due execution. However, when there are suspicious circumstances, this presumption does not apply, and the defender of the Will must remove suspicions by proving that the maker did have the knowledge and approval of the Will’s contents.

This means that if suspicious circumstances are found sufficient to “excite the suspicion” of the Court, the onus of proof that the deceased knew and approved of the Will’s contents becomes a burden on the person claiming that the Will is valid.

The requirement to prove the Will-maker knew and approved of the contents and effects of the Will is part of ensuring the Will contained the maker’s real testamentary intentions. Good evidence of this is, for example, that the Will was read to, or by, the Will-maker and they confirmed their understanding.

In summary, the rule of suspicious circumstances operates to require that the person defending a Will in such circumstances needs to demonstrate that the Will-maker had the required capacity and knew and approved of the Will, rather than relying on the presumption inferred from due execution.

Contact our Contesting a Will Lawyers in Sydney, NSW

Szabo & Associates Solicitors are experts in all aspects of contesting or challenging a Will. If you are concerned about any aspect of the validity of a Will, please call us on 02 9281 5088 or fill in the online contact form.