Pub­li­ca­tions

We can’t build our wills on sus­pi­cious minds

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.