Where a capable Testator makes a Will that complies with formal requirements there is a presumption that the Testator knows and approves of the contents of the Will, but that presumption does not apply where the making of the Will is clouded by suspicious circumstances. For example where a Will has been prepared by a beneficiary this will raise suspicion as to whether the Testator knew and approved of its contents. Where suspicious circumstances exist the onus is on the person propounding the Will to prove not only its due execution but that that the Testator who signed the Will also knew and approved of its contents.
In 2013 a 93 year old Testator signed a Will that was prepared for him by his neighbour. The neighbour was appointed the executor of the Will and the net estate was left to the executor neighbour’s wife. The Testator died in November 2013 leaving an estate worth just over $2 million. The Testator was unmarried, had no children and lived alone.
The Will signed by the Testator met with formal requirements and there was no issue regarding capacity. There were however suspicious circumstances surrounding the signing of the Will and consequently the Court would not be satisfied that the document propounded as the Testator’s last Will did express the true will of the Testator, unless the suspicion was dispelled by the executor.
Evidence revealed that the Will prepared by the neighbour did not conform completely with the Testator’s wishes in that the Testator had wanted to leave $20,000 to the Children’s Hospital and $5,000 to a Church. Instead the Will left the whole of the net estate to the neighbour executor’s wife with a non-binding request that she make a gift of two sums to the Church and the Hospital.
In this case the Court was satisfied that the Testator understood that subject to gifts to the Hospital and Church, all of his estate would be given to the executor neighbour’s wife, “The closeness of his relations with his neighbour makes that a perfectly rational gift, particularly in the absence of any relative with a claim on his testamentary bounty”. The fact that this Will represented a departure from past Wills did not of itself mean that the Testator could not have a change of mind “A change of mind is not itself suspicious, particularly as every passing year may have strengthened the bond of friendship” between the Testator and the beneficiary named in his Will.
Whilst the degree of suspicion will vary with the circumstances of each case “It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed” this case was not of the latter kind and the Court was prepared to find there was a rational explanation for the Testator wishing to leave his estate (subject to two small legacies) to the executor neighbour’s wife. The Court utilised its power to rectify the Will to ensure that the gifts to the Hospital and Church were given effect in accordance with the Testator’s wishes.
Much of the turmoil and expense of the above court case could have been avoided if the Testator had only consulted his Solicitor to draw up his new Will. Accumulating assets takes time and for many it can often take a lifetime. It makes sense then that you should take the time to seek professional advice to make a Will that adequately records your wishes as to the ultimate destination of your wealth. At Everingham Solomons we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.
Click here for more information on Lesley McDonnell