In a decision mid-last year, the Court overturned a will due to undue influence on the testator and a concern that the testator lacked testamentary capacity at the time it was executed. These are traditionally difficult cases to prove, however the plaintiff was successful in this particular case.
Mum and Dad owned two waterfront properties in an undisclosed location. They continued to maintain both properties and did not lease one out throughout the period of ownership. They were burdened with the land tax and did not seek financial support from their children. It was important to them that they be able to provide each of their children with a house in their will.
This was evident in their testamentary intentions over a period of more than 30 years.
After Dad died, it continued to be mum’s intention. Whilst there were minor issues around the differing values of the property, essentially the intention was that each child would receive a property on the mother’s death. There was little else in the Estate.
However, the son started operating under some form of delusion or distortion of reality and accused his sister and her family of taking items from the mother. The son eventually moved in with the mother (despite the daughter undertaking most of the care of her) and had locks to the property changed.
He also took mum to her normal solicitors on two separate occasions for the purpose of making a will. The two solicitors at this firm formed the view that she lacked testamentary capacity to make a new will and made a strong recommendation that she be assessed by her doctor before finalising any will.
It was also noted that the mother, on being refreshed with the terms of her will by the solicitor, did not seek to make any changes.
Then mum makes a handwritten will in July 2013, just two weeks after she had last seen her former solicitor’s.
His Honour noted the handwritten will was remarkable for its lack of crossing out or other errors, and contained particular clauses that only someone with a good understanding of probate law would have included, not a 90 year old woman who required her daughter to write her Christmas cards.
In this will the mother was departing significantly from previous testamentary instruments by giving her estate to her son only, and then if he did not survive, then to his son only (despite having two other grandchildren). There was an unusual clause that stated she had not made any provision for her daughter as she believed her husband had adequately provided for her in his lifetime, when there was no evidence that this was true (in fact the evidence was to the contrary), and there was no evidence that the deceased had ever held this belief.
His Honour commented that if she did hold this belief, then it was an indicator that she was suffering some form of delusion, as it simply was not true on the objective facts. The inclusion of the particular clause was an attempt to prevent a family provision claim against the estate.
Only six days after the handwritten will was dated, the mother was taken to another solicitor who was new to her, and prepared a will in substantially similar terms to the handwritten will. The main difference was that instead of the gift over going to the grandson or his partner, the gift over was to all grandchildren.
Unfortunately this solicitor had since had a number of strokes and had lost capacity himself. His file was in evidence but did not contain any substantive file notes so there was little evidence of how he obtained instructions, and ensured that the client had knowledge and approval of the will.
The performance of the son on the witness stand was quite poor and unusual, leading his Honour to find against his credibility unless his version was corroborated by other evidence.
Lack of capacity and undue influence
Ultimately his Honour found that it was unlikely that the deceased had testamentary capacity at the time she wrote her final will and that probate ought to be revoked. He also considered whether the deceased may have been unduly influenced by the son, and found in this case on the balance of probabilities it appeared that she had been.
Real Cost of Proceedings
One of the sad aspects of this matter is the amount of legal fees incurred by the son. He had been through a number of lawyers prior to the final hearing, and his costs were well in excess of $350,000. The daughter’s costs were in the order of $145,000, meaning the total legal costs were just shy of $500,000.
Whilst the outcome of the family provision proceedings and any costs orders are not yet known, it was quite likely that both properties would need to be sold in order to satisfy the costs and any further provision made for one or both the parties.