When a deceased drastically changes their will just prior to their death

When there are drastic changes in the content of the will of a deceased just prior to their death, a number of potential issues arise which need to be addressed in the administration of the deceased’s estate.  It is not uncommon for so called “deathbed wills” to be challenged by aggrieved family members and potential beneficiaries.

This issue was explored recently in the matter of The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak. In this matter, three testamentary documents were produced to the court being a copy of an original will from 2007, an original of a document drafted in 1994 and an original of a document drafted in 1988. The testamentary documents from 1988 and 1994 left the estate to the deceased’s five children equally. In the 2007 will the deceased left his entire estate to one son and one grandchild and appointed NSW Trustee and Guardian as Executor.

The four excluded children took action against the executor requiring the will to be proved in solemn form, claiming that the deceased lacked testamentary capacity and did not know and approve of the contents of the 2007.  A further application was made by the four excluded children for a family provision order under section 59 of the Succession Act 2006 (NSW).

During the proceedings it was established that the plaintiff had taken instructions from the deceased on 8 May 2007 and the document was executed on 3 October 2007.  When the deceased executed the 2007 will, it was found that the an employee of the plaintiff had made no attempt to satisfy himself of the deceased’s testamentary capacity, or his knowledge and approval of the contents of the 2007 Will in October 2007.  As a result, whilst the court was satisfied that the deceased only suffered mild cognitive impairment at the time of giving instructions, it could not be satisfied on the totality of the evidence, that the deceased had testamentary capacity at the time he gave instructions or executed the 2007 will.  As such, the Court found there could not be a grant of probate in solemn for of the 2007 will and made a grant of probate of the 1994 document.

Capacity

When there are changes to a deceased’s will just prior to their death, a primary consideration is whether or not the testator had capacity to execute their Will.  Testamentary capacity refers to the ability of the testator to formulate sound legal decisions.  The onus of proof is borne by the applicant, who is said to propound the will.  However, during the process the onus of proof may shift to a party alleging that the will should not be admitted to probate to show why it should not be admitted.

The long established test for will-making capacity which was adopted in Australia and other common law countries was established in the case of Banks v Goodfellow in 1870 and has been reaffirmed many times in the 20th and 21st centuries.

The test in Banks v Goodfellow established that it is essential to the exercise of such a power that a testator shall:

• understand the nature of the act and its effects;

• shall understand the extent of the property of which he is disposing;

• shall be able to comprehend and appreciate the claims to which he ought to give effect; and

• that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusions shall influence his will in disposing his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

If any doubt exists surrounding the capacity of a testator, a medical opinion should be sought.

Validly Executed

Another important consideration when a deceased has drastically changed the contents of their will just prior to death is whether or not the will has been validly executed.  Pursuant to Section 6 of the Succession Act 2006 (NSW), a will is not valid unless:

1. it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and

2. the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and

3. at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

Further, the signature of the testator must be made with the intention of executing the will.

Where the formal requirements of a will have not been met, the Supreme Court may dispense with the formal requirements for the execution of a will under Section 8 of the Succession Act 2006 (NSW) which provides that:

1. This section applies to a document, or part of a document, that:

(a) Purports to state the testamentary intentions of a deceased person, and

(b) Has not been executed in accordance with this Part.

2. The document, or part of the document, forms:

(a) The deceased person’s will-if the Court is satisfied that the person intended it to form his or her will, or

(b) An alteration to the deceased person’s will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) A full or partial revocation of the deceased person’s will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

3. In making a decision under subsection 2, the Court may, in addition to the document or part, have regard to:

(a) Any evidence relating to the manner in which the document or part was executed, and

(b) Any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

Undue Influence

Where a deceased has made drastic changes to their long held testamentary intentions just prior to death, the issue of undue influence on the part of a person who assisted the deceased in drawing up the will may arise. Where the person who assisted the deceased stands to gain from doing so, then they may be required to prove to the court there was no pressure, threat, force, trickery or fear involved at any time during the will making process.

The long established principle in determining undue influence in relation to the making of a will was established in the UK case of Wingrove v Wingrove, where Judge Hannen stated:

“To be undue influence in the eyes of the law there must be – to sum it up in one word – coercion.”

However, Judge Hannen expanded on the above by stating that:

“It is only when the will of the person who becomes a testator is coerced in to doing that which he or she does not desire to do that it is undue influence.”

Undue influence is difficult to prove given that the best source of evidence on the matter is invariably the deceased, meaning those alleging undue influence will have to rely upon circumstantial evidence.

Family Provision Claims

In the event that the changes in the content of the deceased’s will fail to make adequate provision for eligible persons, an application for a family provision order may be brought by the aggrieved individual.

Section 57 of the Succession Act 2006 (NSW) defines who is an eligible person to make an application for a family provision order. An eligible person can be:

1. a person who was the wife or husband of the deceased person at the time of the deceased person’s death,

2. a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,

3. a child of the deceased person,

4. a former wife or husband of the deceased person,

5. a person:

   1. who was, at any particular time, wholly or partly dependent on the deceased person, and

   2. who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member, and

6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

The courts apply a two stage process as set out in Singer v Berghouse, in determining applications for family provision orders by eligible applicants.

1. Has the applicant been left without adequate provision for his or her proper maintenance, education and advancement in life?

2. What provision ought to be made out of the estate of the deceased in favour of the applicant?

If the applicant can establish the answer to the first question is ‘Yes,’ the Court will then address the second question in relation to the individual circumstances present in each matter.

Conclusion

Where a deceased has made drastic changes to the content of their will just prior to death which are inconsistent with their long held testamentary intentions, It is important that executors, beneficiaries and potential beneficiaries are aware of the issues set out above in order to minimise the likelihood of costly and time consuming legal action which can significantly dilute the value of the deceased estate.