Covid 19 Update: We are still open as we are an essential service. We are accepting all the new & existing enquiries either via phone or video conferences. As per NSW govt regulations, we are taking all the necessary hygiene precautions to protect our customers and staff.

Covid 19 Update: We are still open as we are an essential service. We are accepting all the new & existing enquiries either via phone or video conferences. As per NSW govt regulations, we are taking all the necessary hygiene precautions to protect our customers and staff.

Can a Will be invalid because of “suspicious circumstances”?

Can a Will be invalid because of “suspicious circumstances”?

We have many people ask us ‘Can a Will be invalid because of “suspicious circumstances”?

There is a “presumption of law” that a Will is valid if –

  1. The Will has been properly signed by the Will maker or Testator and witnessed by two witnesses all present at the same time; and
  2. The Will is “rational” on its face.

The “Suspicious Circumstances Rule” requires the person applying for Probate of the Will to prove the deceased Will maker had either cognitive capacity to make the Will and/or that they knew and approved of the contents of the Will.

The Courts have generally referred to the “Suspicious Circumstances Rule” to decide whether the usual “presumptions” raised by a properly signed and witnessed Will, that is rational on its face, will be applied.

If it is found that there have been “suspicious circumstances”, the suspicious circumstances rule does not, in and of itself, mean that a Will is automatically invalid. Can a Will be invalid

The Rule

A 19th Century case in England first formulated the Rule to mean that –

“… wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed.”

If a well-founded suspicion is raised, the rule operates to prevent the party seeking to prove the Will from relying upon a presumption that the Will, if properly executed and rational on its face, is valid.
The evidence required to dispel a suspicion will depend on the circumstances of the case. The Courts have held that –

“In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.”

Examples of suspicious circumstances which may deem a Will to be invalid are –

  • Some of the more common instances that give rise to suspicious circumstances include:
  • where a party who takes a significant benefit under the will, prepared or procured the Will;
  • where a person other than the testator gave the instructions for the Will;
  • where the testator did not read English and there is no evidence that the Will was translated into the language spoken by the testator;
  • where the testator was blind and there is no evidence that the Will was read to the testator;
  • where the Will is very complex and there is no evidence that it was explained to the testator and the testator understood the explanation;
  • where a testator has omitted a significant beneficiary from the Will without explanation who, objectively viewed, would reasonably have expected to receive a testamentary gift; and
  • where the testator is suffering from a condition that may have impacted the testator’s testamentary decision making.

As the rule concerns the circumstances surrounding the execution of the will, it follows that events after the death of the testator do not give rise to suspicious circumstances.

Conclusion

The suspicious circumstances rule operates to require the party propounding or defending a will to affirmatively prove that the testator had capacity and/or knew and approved the contents of the will, instead of being permitted to rely on the presumptions raised from due execution and the rationality of the will.

Leading law firms committed to helping clients cost-effectively will have a range of fixed- priced Initial Consultations to suit most people’s needs in quickly learning what their options are.
At Brazel Moore Lawyers we have an experienced team who can answer your questions and put you on the right track. Visit https://brazelmoorelawyers.com.au/our-legal-services-gosford/deceased-estates-wills-gosford/ of call 4324 7699.

 

What Our Clients Say