September 2006

Wills & Estates Law Update: succession law changes & case law on disputed wills

Succession Bill 2006 - Important New Law for NSW

The law of Wills in New South Wales is about to be changed as part of the overall push for uniform succession laws throughout Australia.

The Succession Bill 2006 will be introduced into Parliament in the near future. It will implement a major change to the law of Wills. Part of the NSW Wills, Probate and Administration Act 1898 (Probate Act) will be repealed and it is expected the proposed new Succession Act will operate in tandem with the other provisions of the Probate Act. Whilst the Succession Bill has not been made public it is expected to mirror significant parts of the model Bill contained in the Law Reform Commission's Report 85 on Uniform Succession Laws: The Law of Wills.

Some expected changes to the present law include:-

  • the provision for Court made Wills in cases of testamentary incapacity and in cases of Wills for minors;
  • a 30 day period that beneficiaries must survive to inherit;
  • changes to the interested witness provisions;
  • codifying the legal position as to who can see Wills.

It is expected that the rollout of the proposed new Succession Act will be similar to the rollout and education period that preceded the introduction of the NSW Powers of Attorney Act 2003. This will be necessary to become familiar with the changes and to amend documents and precedents prior to the commencement of the proposed new Succession Act. We will be issuing future bulletins in due course.

Disputed Will Held To Be Valid

The recent case of Becker-v-Public Trustee & 2 ors [2006] NSWSC 743 dealt with alleged suspicious circumstances surrounding the last Will of an elderly spinster.

The 80 year old spinster, Miss Wilson, resided in a nursing home at the date of her death on 30 March 2002. Her estate had an estimated value of $1.3m. The major estate asset was Miss Wilson's home at Mosman with an estimated value at $1.2m.

There were two relevant Wills. The first made with the Public Trustee on 23 January 2002 left the estate to The Royal Flying Doctor Service and The Salvation Army (the charities).

The second dated 21 February 2002 was the one alleged to have been signed in suspicious circumstances (the Disputed Will). It involved people that Miss Wilson had become associated with at the Baptist Church, Mosman. The Will appointed Reginald Becker as executor. Miss Wilson's home at Mosman was left to Sandra Abel. The balance of her estate was left in equal shares to Mr Becker, Ms Abel and the charities.

The alleged suspicious circumstances included the following:-

  • Miss Wilson had only known Mr Becker and Ms Abel since about 1995 through the Baptist Church, Mosman;
  • the Will was made during an outing organised by Ms Abel;
  • the Will was made using a Will kit supplied by Ms Abel;
  • Ms Abel organised the two witnesses to the Will;
  • the Will was made and signed quickly;
  • the Will was made during a period of serious poor health for Miss Wilson;
  • Ms Abel was the principal beneficiary under the Will and had also convinced Miss Wilson to allow her and two of her children to occupy Miss Wilson's home at Mosman whilst Miss Wilson was in the nursing home; and
  • Miss Wilson had told another person Ms Abel pressured her to leave her home at Mosman to Ms Abel.

The executor applied for a grant of probate in solemn form of the Disputed Will. The charities opposed the application on two grounds:-

1. At the time the Will was signed and witnessed, Miss Wilson did not approve of its contents;

2. The Will was signed under undue influence.

Legal Principles

The judgement was delivered by Judge Nicholas. It is useful reading as it looks at some important legal principles in Succession Law.

It was up to Mr Becker, as executor, to show that when the Disputed Will was signed and witnessed, Miss Wilson knew and approved of its contents. The legal principles relating to knowledge and approval are:-

  • the proper signing of a Will raises a presumption that the willmaker knew and approved of the contents of the Will;
  • where it is established that a willmaker read the Will, the presumption that the willmaker knew and approved of its contents is a very strong one and can only be rebutted by the clearest evidence;
  • where there are suspicious circumstances relating to the knowledge and approval of a Will, the onus is on the person propounding that Will to establish by the willmaker.

The Decision

The Court found that Miss Wilson did know and approve the contents of the Disputed Will and there was no undue influence. Importantly, Justice Nicholas accepted Ms Abel's evidence. The charities failed in their application to overturn the Will.

Lesson

In the circumstances and facts of this case, the charities cannot be criticised for challenging the Disputed Will. The only way such expensive Court cases can possibly be avoided is by educating willmakers to have their Wills professionally prepared by an independent person such as a solicitor or an officer of the Public Trustee or an authorised trustee company.