Christine Smyth Blog


We act for many aged clients, sometimes they have mobility issues, sometimes they can’t drive, and sometimes they simply need support. So it is no surprise when they arrive for appointments accompanied by friends and/or relatives.  While we are pleased that they have that support, it can be problematic when the appointment involves the aged client seeking to make a will.  Often it is necessary to take a prudent course and ask the companions to wait in reception while the instructions are being taken.  Their companions can be surprised and a little affronted. They do however settle when we explain the reason we make that request is to protect the interests of both the will maker and their companions.  Why? The presence of other people during the giving of instructions for a will and/or the execution of the will can cause the will to be challenged under the Doctrine of Suspicious Circumstances, resulting in the estate being subjected to lengthy and costly litigation.  And so it was the case for Marjorie Mason when her elderly, ill and hospitalised half- brother, Stanley,  made his will leaving his estate, estimated at six million dollars, wholly to her.   At the time of making his will Stanley was: 88 years old, suffered from numerous serious illnesses with periods of confusion, had been variously hospitalised or residing in a nursing home.  Marjorie cared for Stanley and assisted him with his affairs – including making his will.  Unfortunately for Marjorie, she was too helpful.  She organised with her solicitor for Stanley to make his first and only will.  She drafted a document setting out various ways in which Stanley could distribute his estate.  She telephoned her solicitor and put Stanley on the phone while he gave instructions.  She was present when Stanley gave the instructions on the phone.  She was present at the hospital when the solicitor arrived to have the will executed.  Stanley was not married, did not have children, and his closest surviving relatives were his half sister and his half-brother Robert.  On intestacy Marjorie and Robert would have shared equally in Stanley’s estate.  So on these facts it is no surprise that Robert chose to challenge the will resulting in a Court of Appeal determination in the matter of Church v Mason [2013] NSWCA 481.

Robert’s initial challenge to the will was grounded on two fronts: lack of testamentary capacity and suspicious circumstances as to Stanley’s knowledge and approval of his will.  In the first instance the court found against Robert and so he took the matter on appeal.  Robert conceded the Court’s finding that Stanley had testamentary capacity, however, he challenged the Court’s finding as to the suspicious circumstances.  In considering Robert’s appeal, the appeal court observed at [29] ‘the task which the primary judge was required to undertake…called for a “vigilant and anxious examination…of the evidence as to the testator’s appreciation and approval of the contents of the will.’  And so the question for the appeal court was whether at [34] ‘Stanley intended to make a will in those terms – so that I could be said that it expressed his “real intentions”…and “true will”.’  The Court was concerned with respect to Marjorie’s conduct and confirmed that her conduct was such that placed the onus upon her to establish that will Stanley made was one of his real intentions.  And in this context, the circumstances of how Stanley came to finalise his will were key.  On arriving at the hospital, the solicitor took the prudent course and requested that Marjorie leave Stanley’s hospital room, once she left the solicitor questioned Stanley as to his affairs, and read over the will to Stanley, after which he signed it.  While the court of appeal recognised that merely reading the will to the testator would not necessarily be conclusive, “in the circumstances of this case it was persuasive and entitled to significant weight.”  And so Robert’s appeal was dismissed.

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