A Daily Review of Contested Wills

Caveats and costs

A person who files a caveat before making full enquiries has to make up his mind when he is doing so that he will pay the costs of the caveat if he is not in a position to carry it further when an application is made for an order absolute. That is a position which should be clearly understood by people that they are not lightly to put on a caveat to put parties to expense and delay without substantial grounds, and if they do without having probed the matter fully they must be prepared to pay any costs occasioned by that caveat should they be unable to carry it on beyond the order absolute … In the will of Elizabeth O’Driscoll (1929) 29 SR (NSW) 559 Harvey CJ at 561.

Contested will claims based on oral communication from the deceased

In the case of a claim against a deceased estate founded on the oral utterances of the deceased, which only the deceased could have denied, the court scrutinises the claimant’s evidence closely [Plunkett v Bull (1915) 19 CLR 544, 548-549 (Isaacs J); Bovaird v Frost [2009] NSWSC 337, [45]; Varma v Varma [2010] NSWSC 786, [418] – [422]], and although there is no absolute legal requirement for it, ordinarily looks for some corroboration [Re Hodgson (1886) 31 Ch D 177; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq): Brereton J in Ashton v Pratt (No 2) [2012] NSWSC 3 at 18.

Contracts and revoking wills

Although a will is revocable until death or loss of testamentary capacity, equity enforces a contract not to revoke a will, or to leave property by will, not by restraining or nullifying an inconsistent will, but by fastening a trust on the estate to give effect to the contract: Birmingham v Renfrew [1937] HCA 52, 57 CLR 661, 683. A contract to leave an identified property by will is specifically enforceable against volunteers who claim under a disposition by the promisor in his lifetime: Synge v Synge [1894] 1 QB 466 CA, 470-1, but is subject to the claims of creditors if the estate is insolvent: Schaefer v Schuhmann [1972] AC 572, 586 … Handely AJA in Delaforce v Simpson-Cook [2010] NSWCA 84 at 31.

The meaning of testamentary capacity

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made: Banks v Goodfellow (1870) LR 5 QB 549 at 565.

Time limits and notional estate

There are time limitations on property being designated as a notional estate. These provisions apply to transactions within three years before death, entered into with the intent of defeating or limiting a claim, or within one year where the deceased had a moral obligation to make adequate provision for the applicant which was substantially greater than the moral obligation to make the relevant transaction, or which took effect on or after the death: section 80 Succession Act 2006 (NSW).

Secret trusts

Secret trusts arise in circumstances where a testator leaves property to a person by will after having communicated with that person that she or he is to hold the property on trust: McCormick v Grogan (1869) LR 4 HL 82, Lord Hatherley LC at 88, Lord Westbury at 97. The trust is fully secret where there is no indication in the terms of the will that the person is to hold as trustee. For example, in Voges v Monaghan (1954) 94 CLR 231 the testator requested a beneficiary of his estate to maintain his widow even though the testator’s will evinced nothing to this effect.

Witnessing a will

A will that is executed in accordance with this Act is validly executed even if one or more witnesses to the will did not know the document he or she attested and signed was a will: Succession Act 2006 (NSW) section 7.

Presumption of undue influence

Although the relationship between parent and child is one which is well-accepted as giving rise to a presumption of undue influence, that is only true insofar as a parent is presumed to exercise influence over his or her child. There is no presumption in the opposite direction: Brown v New South Wales Trustee & Guardian [2011] NSWSC 1203 at [46] per Brereton J: John Patrick Courtney v Maureen Anne Powell; Peter Michael Courtney v Maureen Anne Powell [2012] NSWSC 460 Ball J at 38.

Revoking a grant of Letters of Administration

There are a number of common circumstances in which the grant of Letters of Administration may be revoked: where the will has been discovered after a grant of Letters of Administration (Re Estate of Wilson (1991) 24 NSWLR 334); and, where it appears to the Court that the Letters of Administration ought not have been granted or that the grant contains an error, if the Court is satisfied that the grant would be revoked at the instance of a party interested: Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594 Slattery J at 145.

Undated document a will?

In NSW Trustee and Guardian v Pittman – Estate of Koltai [2010] NSWSC 501 White J considered whether an undated document constituted the will of the deceased … White J found that the use of the words “of sound mind” indicated that deceased intended to make a testamentary instrument: at [33]. But several other factors outweighed that conclusion. White J found that the statement that the deceased’s mother or brother should pay her debts was more consistent with the document being an expression of her wishes as to how her family should act after death rather than being intended to be a will (at [34]): Alan Yazbek v Ghosn Yazbek & Anor [2012] NSWSC 594 Slattery J at 100.