Written by Christine Vrahas, Estate Dispute and Litigation Lawyer
We can’t go on together… with suspicious minds….
We’ve all heard Elvis’s stance on suspicious minds in the context of lovers, but what about suspicious minds in the context of the execution of wills?
The matter of Mekhail v Hana In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452 is a good illustration of suspicious circumstances in the context of the execution of a will.
Georgette and her son Bishoy attended upon a solicitor in late 2014 together with Nadia, the testatrix, who had been released from palliative care, in the final stages of metastasised breast cancer. The solicitor had never previously met or spoken with Nadia. However, he had already drafted a will leaving the whole of her estate to Georgette and appointing her executrix He had also already drafted an enduring power of attorney in favour of Georgette. Both documents were based on a series of lies made to him by Bishoy with the full knowledge of Georgette. The most striking lie was that, contrary to what the solicitor was told and what appeared on the face of the will which the primary judge admitted to probate, Georgette was not Nadia’s daughter. Nor was Georgette Nadia’s next of kin. The two women were unrelated.
Nadia executed the 2014 Will.
Suspicious circumstances?
Nadia dies. The primary judge makes an order that probate of Nadia’s 2014 is granted to Georgette.
On appeal, the Court of Appeal found that despite weight given in circumstances where a testator or testatrix had read and has signed a will, in law, that fact alone is not conclusive proof that:
- This was the will of a free and capable testator; and
- The will represent the deceased’s wishes. That is, did the deceased knew and approved of the will.
After revisiting the full nature of the evidence supporting the claim of suspicious circumstances, the Court of Appeal was not satisfied that 2014 was that of a free and capable testatrix and that the deceased knew and approved of its contents.
If you have any questions with regard to this, or any other Estate Litigation matter, don’t hesitate to get in touch with the Estates team at Owen Hodge Lawyers. Contact us either via email at [email protected] or via phone at 1800 770 780.