Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 13 July 2019.
Martin and Natalie had been married for 50 years.
During a period of separation, 10 years ago, Natalie made a will leaving the whole of her estate to their four children.
When Natalie is diagnosed as suffering from terminal brain cancer, Martin prepares a new will for her, without the assistance of a solicitor, leaving the whole of her estate to him.
When Natalie passes away, her estate is valued at $3 million.
When Martin attempts to obtain a grant of probate, the children commence Court action, claiming that the new will is invalid.
The children claim that their late mother did not “know and approve” of the contents of the new will.
The children also claim that their mother was the victim of undue influence.
After a five-day hearing, the Court notes that the new will was duly executed in front of two witnesses and that there was no allegation that Natalie lacked the mental capacity to execute a new will.
The Court notes that Natalie’s cancer “weakened her in both mind and body”.
The Court also notes that the new will was very different to Natalie’s previous will.
The Court observed that Martin was the only person to provide evidence that Natalie understood the effect of the new will and the Court expressed concerns in assessing hearsay evidence that was not corroborated.
However, despite “suspicious circumstances”, the Court did not find that there was evidence that Martin “pressured or forced” Natalie to execute the will and found that despite her illness she remained an “intelligent and independent-minded woman”.
The Court ultimately found that the new will was valid but went on to award the four children a total of $1 million on the basis of their back-up family provision claims because the new will made no provision for them.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
