It is not uncommon for a Will to be put forward as being a person's last record of their testamentary intentions only for it to be challenged by an aggrieved beneficiary (or someone who, in their opinion, should have been a beneficiary).

These disputes often take the form of an application under Chapter 3 of the Succession Act on the basis that the testator did not make adequate provision for a particular person, or because there are unresolved questions as to the testator's testamentary capacity to provide instructions in relation to the Will, or their ability to execute it.

In other cases, an aggrieved (or interested) party brings an application requiring another party to prove the contents of a Will in solemn form on the basis of 'suspicious circumstances'.

Plaintiffs seeking to challenge a person's testamentary capacity (for example) have a high bar to satisfy as they will generally have the onus of proof to positively establish that at the relevant times the testator did not have the requisite knowledge and approval of the will. Experience tells us this can be very difficult to prove.

However, if a plaintiff can show that there are 'suspicious circumstances' surrounding the drafting and execution of a Will, the Doctrine of Suspicious Circumstances will, in effect, cause the onus of proof to shift to the party/ies propounding the Will.

In this article we consider the recent matter of Victor Chang Cardiac Research Institute Limited v Robin Slipper (the 'Tully Proceedings') in which the Doctrine of Suspicious Circumstances was successfully relied upon.

ESTATE OF TULLY

In this matter, proceedings were commenced in the Supreme Court of Queensland on behalf of the plaintiff (Victor Chang Cardiac Research Institute Limited ('VCCRI')) requiring the executor to prove in solemn form the Will of the late Paul Matthew Tully ('the Deceased') ('the Estate'), of which VCCRI was a beneficiary.

Specifically, VCCRI alleged that the circumstances in which the subject Will was prepared invoked the Doctrine of Suspicious Circumstances and lead to an apprehension that the will did not reflect the testamentary intentions of the deceased and/or the deceased did not have testamentary capacity at the relevant times.

SUSPICIOUS CIRCUMSTANCES?

The circumstances leading up to the Tully Proceedings are peculiar: the executor of the Deceased's estate was the Deceased's former solicitor Mr Robin Slipper. Prior to the commencement of the Tully Proceedings, Mr Slipper had (without the knowledge of VCCRI) successfully obtained a grant of probate in relation to the estate in common form and taken steps to administer the Estate.

The Will that was the subject of that grant was executed in 2011. Relevantly, a previous Will executed in 2006 bequeathed, in effect, the Deceased's entire estate to VCCRI. The only material difference from the 2006 Will was that the 2011 Will included a substantial cash gift to Ms Bignell, an employee of Mr Slipper, the solicitor who drafted the Will.

Ms Bignell was not known to the family of the Deceased and the Will excluded all of the Deceased's children. There was no explanation provided by the Deceased in his Will, nor was there a memorandum of wishes or any other document explaining the reason for the contents of the Will.

It was also alleged, and ultimately by Mr Slipper, that his conduct was in breach of rule 10.2 of the Legal Profession (Solicitors) Rule 2007 (QLD), which provides that a solicitor is prohibited from (among other things) drawing a Will in which a solicitor's associate (such as an employee) will or may receive a substantial benefit.

On advice, VCCRI took the view that these matters were sufficient to invoke the Doctrine and the Mr Slipper was subsequently put to proof to positively show that the Deceased knew and approved of the Will.

Mr Slipper defended the proceedings on the basis that he asserted exerted no pressure on the deceased in relation to the 2011 Will, that Ms Bignell had no involvement in and no knowledge of the 2011 Will and that the 2011 Will reflected the testamentary instructions of the deceased and that the deceased had testamentary capacity.

DOCTRINE OF SUSPICIOUS CIRCUMSTANCES

VCCRI relied upon the Doctrine of Suspicious Circumstances in requiring the executor of the Estate to prove that the Deceased knew and approved the contents of the Will.

The Doctrine has been the subject of significant judicial comment and application historically. One of the leading decisions on this issue is Burchett AJ's decision in Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600, wherein his Honour reviewed the development of the doctrine. It can be identified from Burchett AJ's analysis that the majority of decisions dealing with the Doctrine of Suspicious Circumstances consider the issue in circumstances where a person who benefits under the will had been instrumental in the procuring of the will: In re Nickson, deceased [1916] VLR 274 at 281; Baker v Batt (1838) 2 Moore 317 at 321; Atter v Atkinson(1869) LR 1 P & D 665 at 668; Fulton v Andrew (1875) LR 7 HL 448 at 469-470 and In re Breen [1927] VLR 164 at 166.

However, as discussed by Burchett AJ in Vernon v Watson (considering the judgment of Lindley LJ in Tyrell v Painton) the Doctrine

"... extends to all cases in which circumstances exist which excite the suspicion of the Court; and where such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document".

Invariably, disputes that arise in relation to this issue (as well as others) have a propensity to arise when a Will is executed in short proximity to a person's death and in circumstances where the contents of a person's Will are unexpected. Equally, these issues often arise where a testator or testatrix acts (in a person's view) harshly or unfairly in benefiting one person over another.

However, the authorities make it plain that a curious or unexpected Will is insufficient to raise the necessary level of suspicion. For example, the observations of Isaacs J in Nock v Austin suggest that the mere fact that a testator has not benefited family members but rather benefited others is not enough per se to create suspicion. Furthermore, Gleeson CJ in Re Estate of Griffith (deceased); Easter v Griffith said:

"...Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid."

Ultimately, Mr Slipper, on behalf of the estate, settled the proceedings.