A will prepared and witnessed by a lawyer does not guarantee the testator will know and approve the will’s content.
Case note: Veall v Veall  VSCA 60
The testator, Arthur Keith Veall, died on 13 October 2011 aged 91 years.
The testator’s last will was dated 10 December 2011.
His last will was challenged on two grounds at trial. That the testator:
- lacked testamentary capacity shortly before and at the time that he executed the will; and
- did not know and approve the contents of his will.
The trial judge refused to admit the will to probate. Notwithstanding that the testator suffered from impaired cognition, the judge was satisfied that the testator did have testamentary capacity before and at the time that he executed his will. Notwithstanding that he had testamentary capacity and that the will was drawn by a solicitor and read by him to the testator, the trial judge was not satisfied that the testator knew and approved its contents. [Veall & Anor v Veall  VSC 38].
The executor of the last will appealed against the trial judge’s finding on knowledge and approval and the other party appealed against the finding that the testator had testamentary capacity.
The last will departed significantly from several previous wills executed by the testator. In those wills, the testator had appointed his two eldest children as his executors, he had made a limited number of specific legacies (including his prized shotguns) and he had divided his residuary estate equally between his three natural children. In the disputed last will, he had appointed his eldest son and his daughter-in-law as his executors, redirected the specific legacies away from the previous intended beneficiaries, and divided his residuary estate equally between his two eldest children to the exclusion of his youngest daughter. Finally, in providing for his residuary estate, he made express reference to some shares that had been by far his largest asset. However, those shares had always been held in a trust and had been disposed of by the trust several years previously.
The circumstances in which the testator made these changes, together with evidence of his physical and mental health in or about December 2010, were the basis for the contention that he lacked testamentary capacity and did not know and approve the contents of the last will.
The Appeal Court upheld the appeal against the finding that the testator had testamentary capacity on the ground that the proponent of the Last will did not affirmatively establish that, when the testator executed the last will he was still able to evaluate the claims which naturally ought to press upon him and, thus, lacked testamentary capacity. The Appeal Court went on to also dismiss the appeal against the trial judge’s finding on knowledge and approval on the basis that it was not persuaded that the trial judge was in error in holding that he could not be affirmatively satisfied that the testator knew and approved the contents of the last will.
In coming to these conclusions, the Court looked at a range of historical information to inform itself as to the testator’s level of understanding of the last will at the time it was executed. These included the management of a trust wound up in 2008, a series of prior wills starting with a will in 2007, evidence for friends and family of the deceased, an affidavit relating to the testamentary intention of the deceased prepared and sworn in 2010, affidavits of the deceased sworn in 2010 in contemplation of Family Court proceedings, evidence from doctors as to his health and capacity and the files of solicitors who had acted on the deceased instructions regarding trusts and the wills.
The solicitor who prepared the last will was uncooperative in producing his file and when it was produced it was incomplete and when called to give evidence gave contradictory accounts to prior affidavit evidence he had sworn. No evidence was adduced at trial that the solicitor had been told of the testator’s mental decline and his growing irrationality.
The trial judge’s reasons
The trial judge identified the following circumstances as giving rise to the suspicion that the testator did not know and approve the contents of the last will:
In his previous wills:
- he had divided his residuary estate equally between his 3 children Rowland, Denise and Kim. In the last will, he bequeathed the residuary estate equally between Rowland and Denise, to the exclusion of Kim;
- he bequeathed his two “valuable and unique” shotguns to Kim’s sons. Under the last will, he bequeathed the shotguns to Rowland;
- there was no provision for executor’s commission. Under the last will, provision was made for a comparatively high rate of commission;
- there was no mention of the shares in Auspine (which were held by a trust and had been sold 3 years earlier). In the last will, he bequeathed “my shares in Auspine” as part of his residuary estate.
Capacity, knowledge and approval
The Appeal Court gave a succinct summary of the law, and importantly the shifts in evidentiary burden in such cases summarised as follows.
Where a will is sought to be admitted to probate, the onus of proving the will lies on the propounder. The propounder must prove:
- the testator had testamentary capacity; and
- the testator knew and approved the contents of the will at the time of its execution.
Where a will that is rational on its face has been duly executed, a presumption arises that the testator had testamentary capacity.
The evidentiary burden then shifts to the party impeaching the will to point to circumstances that raise a suspicion that the testator was not mentally competent.
If suspicious circumstances are established, the evidential onus is then put back upon the propounder to satisfy the Court that the testator had testamentary capacity: that is that the testator was of “sound and disposing mind”. [Tobin v Ezekiel (2012) 83 NSWLR 757, 770]
Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will.
As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them.
The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.
The testator’s feebleness of body or mind may be relevant to knowledge and approval. Proof that the will was read by or read to the testator before its execution may not be sufficient; nor will evidence that the will was explained to the testator.In this case the presumption that the testator knew and approved of the contents of the will at the time of its execution was displaced once the trial judge found that there were suspicious circumstances attending the execution of the will. Without the benefit of the presumption, the onus was on the proponents of the last will to establish affirmatively that the testator knew the contents of the last will and appreciated the effect of what he was doing so that it can be said that it contains his real intention and reflects his true will.
In providing such proof, the standard requires no more than the satisfaction of the conventional civil standard of proof. The authorities emphasise that ‘the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters’. Evidence that a will was prepared on the testator’s instructions and was read by or to him or her before it was executed has been described as “the most satisfactory evidence”. But, it is not conclusive evidence. In the end, the Court must be satisfied that the testator knew and approved the contents of the will sought to be admitted to probate.
In affirming comments in McKinnon v Voigt  3 VR 543 that where suspicious circumstances exist, the Court must give the evidence “vigilant and jealous scrutiny”, the Appeal Court in applying that test, in all the circumstances, found it could not be affirmatively satisfied that the testator in this case knew and approved of the contents of the last will.
This was not a case where fraud or undue influence was alleged (in which case the onus of proof lies at all times on the party alleging it) but a test of capacity and understanding.
Whilst still challenging for a party to adduce sufficient evidence to firstly raise the required suspicion as to the testator’s capacity or understanding, the case highlights circumstances such as significant departure from previous testamentary intent, documentary evidence of inconsistent understanding of assets, and of the inadequacy of the file records and evidence of the solicitor who prepared and witnessed the last will, in not only raising the suspicion but in making it difficult for the proponent of the will to satisfy the burden of proof that the testator had both capacity and that he knew and approved of the content of his last will.
Cautionary Note to Solicitors
What is the position of the lawyer in this case where it appears his lack of investigation of capacity and failure to maintain adequate records as to his instructions and advice to the testator arguably contributed to the failure to prove the testators capacity and required degree of knowledge and approval of the Will. Did his negligence give rise to the probate claim to set aside the Will? and if so will he be liable for the loss to the estate namely the costs in the probate proceedings of the beneficiaries under the probated Will, or be liable for the loss incurred by the beneficiaries of the last will in that his failures contributed to the last will not being proved.
In the English case of Worby v Rosser  PNLR 140 the Court of Appeal held that any claim for the costs of the probate proceedings which were the consequence of a solicitor’s negligence in preparing a will ought to be made by the personal representatives of the last valid Will. The personal representatives could sue a negligent solicitor to recover any costs payable out of the estate.
Where a will is set aside on grounds of incapacity of the testator, a negligence claim by the beneficiaries of that will against the solicitor preparing it, would fail because a solicitor acting competently would have declined to act, and the beneficiaries would not have received any benefit.
A claim by the beneficiaries may arise if the will is set aside in circumstances of lack of knowledge and approval or due execution where, but for the solicitor’s negligence, the will would have been effective to confer benefits on the beneficiaries of the will. [Hill v Van Erp (1997) 188 CLR 159; Corbett v Newey  Ch 57; Corbett v Bond Pearce  PNLR 31]
For more information on this update please contact Greg Mohen on (08) 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.