13 December 2016 We can't build our wills on suspicious minds…

By Angela Harvey, Partner and Alexander Moddel, Graduate Solicitor

What to expect when challenging a will made in 'suspicious circumstances'

Key points

  • Courts presume that wills are made validly – that is, that they are prepared and executed correctly, and that the testator knows about and approves of the contents of the will

  • These presumptions are open to challenge where the will is made in 'suspicious circumstances'

  • A recent Supreme Court case held that a testator's second will – made 10 days before death and disinheriting family members – was made in suspicious circumstances

  • Further evidence held that the testator was not capable of holding the requisite testamentary capacity to make a valid new will – his mental state was not capable of sufficient knowledge or approval of the will's contents – invalidating the second will and allowing the first to prevail

A recent Supreme Court judgment, Estate El Chami; Habib v El Chami [2016], has reconfirmed the relevance of the 19th century rule regarding wills made in 'suspicious circumstances'. Courts presume that a person making a will – the testator – knows about the will and approves of its contents. Those features are central to a will's validity. However, when the testator makes that will in questionable circumstances, those presumptions of adequate knowledge and approval can be disputed.

What happened in El Chami?

Elias El Chami died on 23 February 2014. He made two wills – the first in April 1992, and a second will made ten days before he died. The 2014 will purported to revoke the 1992 will.

El Chami never married or had children. His 1992 will appointed his brother Salim as the sole executor and beneficiary of his estate. If Salim did not survive Elias for at least three months, Salim's children Sonya and Samia would become joint executors and beneficiaries. As Salim died during the course of proceedings, his children assumed these responsibilities.

The 2014 will replaced these provisions by naming El Chami's neighbour Elias Habib as a new sole executor and beneficiary. Seeking to propound the new arrangements, Habib sued Sonya and Samia. The onus was on Habib to prove that El Chami had the testamentary capacity to make the 2014 will.

Assessing the testamentary capacity of a will-maker

Testamentary capacity is the ability of a person to make a valid will. Courts are guided by the 1870 case of Banks v Goodfellow when determining testamentary capacity. The will-maker must:

  • Understand the fact they are making a will and the effects of this decision,

  • Understand the extent of property that will be distributed in the will,

  • Appreciate who will be inheriting what, and who, if anybody, will be left out of the will, and

  • Make decisions about various gifts in the will free from mental disorder.

If these factors are not present, the will-maker is not considered to hold the requisite testamentary capacity to make the will. The principle operates to prevent decisions relating to a person's estate being made by an unsound mind.

Using the 'suspicious circumstances' rule to dispute a will-maker's testamentary capacity

Mr El Chami made the 2014 will in unusual circumstances – El Chami was frail and had been bedridden since a head injury that affected his cognitive ability two months prior. Elias Habib – who stood to benefit from the 2014 will – invited an Arabic-speaking solicitor to prepare El Chami's new will. The solicitor explained the will in Arabic given El Chami's limited English abilities.

Attempting to prove Mr El Chami's testamentary capacity, the solicitor obtained a medical certificate recording El Chami as 'physically unable, but mentally able to make…informed life decisions'.

The 2014 will was prepared and witnessed validly. However, by using the 'suspicious circumstances' rule, Sonya and Samia – the beneficiaries of the 1992 will – successfully cast doubt on whether El Chami held the requisite testamentary capacity to make the 2014 will.

The 'suspicious circumstances' rule originated in the 1838 case Barry v Butlin and has been referred to in recent New South Wales appellate judgments – see Tobin v Ezekiel (2012).

Tobin broadened the rule to include suspicious circumstances concerning a will's contents. The courts presume a will-maker knows and approves of the contents – but this can be disputed by 'well-grounded suspicion or doubt' as to whether the will properly expresses the testator's intentions. Sonya and Samia held a number of such suspicions about the contents of the 2014 will:

  • The witness to the will, the manager of El Chami's nursing home, only witnessed the signing – he did not witness any discussion of instructions regarding the contents,

  • The doctor assessing El Chami's mental capacity did not focus upon whether he held, at the requisite time, the specific capacity to give instructions for a will, and

  • The will purported to disinherit Salim, Sonia and Samia on the basis that they 'did not take care of' El Chami – this was demonstrably false based on care records.

Finding these suspicions well-grounded, Justice Lindsay held that:

  • Mr El Chami did not hold the requisite testamentary capacity, either when giving instructions or executing the 2014 will, using the guide from Banks v Goodfellow: His mental state was unsound, having 'poisoned his affections' and 'perverted his sense of right',

  • El Chami's mind, memory and understanding were influenced by a 'delusional belief' about his relationship with his brother that fundamentally influenced the 2014 will's contents, and

  • As the 2014 will was invalid the 1992 will was admitted to probate

What these developments mean for challenging a will

Recent judicial developments including El Chami and Tobin open new avenues for disputing wills made in 'suspicious circumstances'. Where the 'suspicious circumstances' rule was once confined only to the issues of preparation and execution of a will, the rule now extends to challenging the presumption that a testator has adequate knowledge and approval of a will's contents, and whether the Will expresses the testator's true testamentary intentions.

If you or a loved one requires assistance with creating or challenging a will, please contact Swaab Attorneys.

Angela Harvey, Partner  |  Phone: +61 2 9233 5544  |  Email:

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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