Matters the Court looks at relating to proof of validity of a will.

Date: Mar 01, 2012
Document Type: Article

Kate’s father Douglas died, aged 85, late last year of liver failure after years of alcohol abuse. In 1999 Douglas told Kate that he had made will, kept at their family solicitor’s office, leaving her his entire estate. After Douglas’s death Kate applied for a grant of probate of the 1999 will.

However, Kate’s aunt Sue challenged the grant. Sue claimed that Douglas, during his illness in 2011, had decided to execute a new will leaving her his whole estate. Sue claimed the week before his death Douglas asked her to organise a new will. She arranged her solicitors to prepare the will and come to the hospital to witness it.

The rule with wills is that a later valid will prevails over an earlier valid will. The party claiming that the later will should prevail has the onus of proving that the later will is valid. So, in the example above, throughout the whole case it would be up to Sue to prove the 2011 will was valid. If, after considering all of the evidence, the Court decided that Sue was unable to prove the 2011 was valid then the Court would be bound to rule that the 1999 will prevails.

The first thing Sue would have to prove is that she has a prima facie case. That is she has to satisfy the court that Douglas was mentally capable of making the 2011 will and was acting of his own free will when it was made.

Generally a prima facie case can be established by the will maker’s execution of the will unless there is some suspicion the will maker did not understand or approve of the will. Suspicion may be raised in this case because:

1.       Sue organised the 2011 will and received a benefit under it;

2.      Douglas was weak and at the end of his life when he signed it.

Where there is no question of fraud, the fact that a will has been read over to or by a capable testator is, as a general rule, conclusive evidence that he or she knew and approved of its contents.

A duly executed will is presumed, in the absence of evidence to the contrary, to be that of a sane person of competent understanding. In Sue’s case evidence contradicting Douglas’s sanity might include the fact that:

a)      The 2011 will excludes daughter Kate, who has natural claim on the estate;

b)      Douglas was old, ill and an alcoholic when it was made.

While the fact that Douglas was very old, an alcoholic and on ‘death’s door’ would cause the Court to carefully scrutinise the execution of the 2011 will, none of those facts are conclusive evidence that Douglas was incapable of making the will. Those facts will only be conclusive evidence that Douglas lacked capacity if it can be proved by Kate that his age, alcoholism and illness so effected his capacity that he was unable to understand or approve the 2011 will.

If you are concerned about whether a will has been validly executed call Dominic Wilson on 02 8268 4000.

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