WILL KITS AND SUSPICIOUS CIRCUMSTANCES

Introduction

Will kits are increasingly being advertised in the media and, presumably, their usage is increasing.  The appeal seems to be that for a relatively cheap purchase price the need to deal with and pay a solicitor to make a Will is avoided.

Ironically, the charge made by the legal profession for the production of simple mutual Wills has traditionally been modest.

Use of a Will kit and the implicit avoidance of the legal profession and protocol used by the legal profession surrounding the making of a valid Will, inevitably, result in the removal of substantial safeguards which reinforce the probity of a Will and the underlying assumptions that are normally made with respect to a validly executed Will.

Assumptions and Presumptions

In his text  Protecting a Will  : Shane Newton (1994) at p122 states:

“If a Will, rational on its face, is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding, without undue influence or fraud and with knowledge of and assent to the contents of the Will by the deceased.” [1]

In their text Outline of Succession : Ken Mackie and Mark Burton advance the proposition a little further.  At p36 they state:

“The legal burden of proof always lies on those propounding the Will to prove that the testator knew and approved the contents of the Will.  A presumption is raised to assist this process.  If there is proof that the testator had testamentary capacity and that the Will is duly executed, then, in the absence of suspicious circumstances, knowledge and approval will be presumed.” [2]

Normal legal protocol

An experienced probate solicitor when making a Will, will usually ensure that the testator knows in general terms the size and dimensions of his or her estate and has addressed the question as to a recognition of those who have significant moral claims on the estate as well as weighing up those claims.

A prudent solicitor will normally satisfy himself or herself that the testator appears reasonably mentally capable of making a Will.

Furthermore, generally a note of the testator’s intentions and instructions will be kept by the solicitor involved in the preparation of the Will and, prior to execution of the Will, he or she will read it over to the testator and the testator’s execution will be witnessed by paralegals within the office.

This process which, I suspect, has been developed over centuries provides a significant bulwark to the reliability of the Will and significantly negates doubt or suspicion as to the authenticity of the Will.

Process with Will Kits

A Will kit on the other hand can be prepared secretly by the testator; or alternatively can be prepared by a family member for an elderly and/or frail testator.  Such a Will can be witnessed by neighbours who do not need to be told what it is they are witnessing.

Obviously with Will kits there is a considerably larger opportunity for the unfair or unscrupulous usage of this process by those who would seek to unfairly advantage themselves often at the expense of siblings and others having a clear moral claim on the estate of the testator.

“On its face”, a Will made from a Will kit will appear “rational”.  Accordingly, it would appear that a Will made from a Will kit might be entitled to the same assumptions and presumptions of regularity as a Will made in accordance with traditional legal process.

Suspicious circumstances

The assumptions of validity arising from due execution of an apparently rational Will are, however, displaced and do not arise in situations where the execution of such a Will found to be associated with “suspicious circumstances”. [3]

In particular, the presumption that the testator had knowledge of and approved of the contents of the Will is displaced.  If suspicious circumstances are demonstrated then the executors who seek to prove a Will, will have to prove on the balance of probability that the Will was regular and that the testator had knowledge of and approved of the contents of his or her Will at the time the Will was made. [4]

If there are suspicious circumstances those propounding the Will, will need to satisfy a Court that the testator had testamentary capacity and knew of and approved of the content of his or her Will.

It may be (although I doubt this) that executors seeking to propound a Will surrounded by suspicious circumstances will also have to negate undue influence or fraud. [5]  It is submitted that those challenging always carry the onus of establishing these grounds. [6]

What constitutes suspicious circumstances

The categories of suspicious circumstances are not and have not been conclusively defined.  However it seems there is little doubt the following amount to suspicious circumstances:

(i)          The classic case of suspicious circumstances arises when the beneficiary is the preparer of the Will or plays a substantial part in the preparation of the Will.

Obviously, a beneficiary who prepared a Will for an elderly testator should excite suspicion – particularly if the Will was prepared from a Will kit rather than as a consequence of the normal legal protocol.

Of course there have been circumstances where solicitors have made themselves beneficiaries in the course of a Will being prepared pursuant to normal legal protocol. [7]

(ii)         An inofficious Will.  An inofficious Will is one where a clear and substantial moral claim has been overlooked by a testator in circumstances where there appears to have been no reason why such a claim (for example, by a dutiful adult child) is ignored.

Shane Newton in his work refers to Brown v McEnroe [8] wherein the Court stated:

“[W]here the Will is inofficious, where no provision, or an apparently inadequate or unfair provision, is made for those who ought to be the objects of the testator’s bounty, then fuller and clearer evidence of capacity is required, and the capacity must extend to a memory and understanding of the extent of the property to be disposed of, and of the claims of those for whom he ought to provide.”

(iii)        Enfeeblement, advanced age and grave illness (physical or mental) often in combination may also amount to suspicious circumstances.

It would seem that an argument based on suspicious circumstances would be significantly enhanced where a Will kit or homemade Will is involved.  In such circumstances the normal legal protocol is not followed and accordingly the opportunity for manipulation and sharp practice is considerably increased.

Accordingly, if a sibling assisted an elderly and feeble parent make a homemade Will excluding bequests to other siblings who enjoyed a close and mutually beneficial relationship with their parent then the burden of proving that the testator knew of and approved of the contents of his or her Will would be substantial.

In fairness, as has been noted, the normal legal protocol is itself capable of manipulation and sharp practice but, on balance, normal legal protocol provides a significant safeguard to the probity of a Will.

Isaac J in Nock v Austin  [9] usefully summarised the relevant law as follows:

“The relevant law is not doubtful.  It may be thus stated:

(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents (Barry v Butlin; Fulton v Andrew);

(2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden or removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved on the contents of the document (Baker v Batt; Tyrrell v Painton; Shama Churn Kundu v Khettromoni Dasi);

(3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate (Baker v Batt; Fulton v Andrew);

(4) The circumstance that a party who takes a benefit wrote or prepared the Will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator’s appreciation and approval of the contents of the Will (Barry v Butlin and Fulton v Andrew; per Lord Shaw in Low v Guthrie);

(5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved.  It does not introduce a disqualification (per Lord James in Low v Guthrie);

(6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus (Barry v Butlin);

(7) The doctrine that suspicion must be cleared away does not create ‘a screen’ behind which fraud or dishonesty may be relied on without distinctly charging it (Lord Loreburn L.C. in Low v Guthrie).”

Suggested enquiry

A solicitor instructed to enquire into the probity of a homemade Will or a Will made from a Will kit would be wise to, amongst other steps:

(i)          Ascertain in whose handwriting the blank spaces in a pre-prepared Will have been completed.  If the beneficiary’s handwriting is in the Will then the beneficiary has clearly either prepared or assisted in preparation of the Will;

(ii)         Find out whether the beneficiary was present at the time the Will was made or executed;

(iii)        Ascertain whether the Will is an inofficious Will, in other words whether obvious claims on the testator’s estate have been wholly or partially ignored;

(iv)       Confirm with the witnesses that the Will was validly witnessed, that is that the Will was executed by the testator in the presence of both witnesses and obtain from the witnesses a statement as to the circumstances surrounding the execution of the Will;

(v)        Establish that the testator at the time of making the Will was not particularly feeble or particularly sick or suffering from any particular psychological or psychiatric condition including grief, major depression or disorientation.  Major depression by itself is unlikely to amount to a lack of testamentary capacity but may amount to a suspicious circumstances removing the assumptions and presumptions of regularity. [10]

If there are suspicious circumstances present then establishing that the testator had testamentary capacity and knew of and approved of the contents of his or her Will will be considerably more difficult to prove in circumstances involving a Will kit or homemade Will than in circumstances where normal legal protocol was followed including the reading over of the Will to the testator prior to execution.

Conclusion

If suspicious circumstances exist that surround the making and execution of a Will then the party seeking to propound the Will must prove on the balance of probabilities that the testator, inter alia, knew and approved of the contents of the Will.  The onus of proof will be even more difficult to discharge in circumstances involving a Will kit or homemade Will if it is invalidly executed. [11]

The normal legal protocol surrounding the making of a Will for a testator by his or her solicitor involving enquiries, assessment, the taking of instructions and the reading over of a Will prior to execution will often by themselves exclude suspicious circumstances and in the event of suspicious circumstances provide a substantial basis to satisfy a Court that the Will was validly made and, in particular, that the testator knew of and approved of the contents of the Will.

As the High Court said in Nock v Austin:  [12]

“If, therefore, the Court could see that Austin’s account of the reading over of the Will by him to Nock and the subsequent personal reading of the document by Nock himself and the express approval of the contents by Nock were not to be relied on, the proponents must fail.  But assuming the Court vigilantly watched Austin’s behaviour as a witness and the surrounding circumstances, and formed the opinion that as a witness he is trustworthy, there seems in this case no escape from the position that the third issue must be found in proponent’s favour.”

The possible increased difficulties in proving a Will made from a Will kit create a valid basis to confidently advise against their use and to recommend reference to a competent solicitor.

 

 

W.A. AYLIFFE

BARRISTER

 



[1] The learned author cites the following authorities for his propositions : Timbury v Coffee (1941) 66 CLR 277 at 283; Landers v Landers (1914) 19 CLR 222 at 233; Nock v Austin (1918) 25 CLR 519 at 528.

[2] The learned authors cite the authority Re Fenwick [1972] VR 646 for this proposition.

[3] See Protecting a Will : Shane Newton at p123; and see Outline of Succession : Mackie & Burton at p37.

[4] See Protecting a Will : Shane Newton at p123

[5] See Protecting a Will : Shane Newton at p123

[6]             See proposition 7 of Isaacs J in Nock v Austin (1918) 25 CLR 519 at p528

[7] Wintle v Nye [1959] 1 All ER 552.

[8] (1890) 11 NSWR 134 at 138.

[9] (1918) 25 CLR 519 at p528

[10] Perpetual Executors Trustees and Agency Company (WA) Ltd v Deacon (1935) 38 WALR 31 at pp43-44.

[11]             Section 26 Wills Act 1992; Section 10(1) Wills Act 2008

[12] (1918) 25 CLR 519 at p529