Hall v Carney & Ors [2012] SASCFC 76

On 21 June 2012, the Full Court of the South Australian Supreme Court considered whether suspicious circumstances existed in the preparation and execution of the deceased’s last will and if so, whether the deceased knew and approved the contents of that will.

The deceased had prepared a number of wills during her lifetime. On 17 November 2006 she executed a new will which was a radical departure from her previous wills. The deceased’s son, who received a lesser entitlement under the 2006 will, claimed that the change to the deceased’s will was as a result of pressure and persuasion from other family members, namely the deceased’s husband and daughter. The question was whether the radical change and the alleged pressure were enough to arouse suspicion of undue influence on the deceased.

The Court considered the presumption that a willmaker does know and approve the contents of his or her will in the absence of suspicious circumstances. However, it was found that in the circumstances of this case, the factors leading to the changes made by the deceased did arouse suspicion, therefore the presumption did not exist and it was necessary to establish that the deceased knew and approved the contents of her will.

The evidence of the solicitor who drafted the deceased’s will was strongly considered. He was able to show that the deceased was mentally competent and had provided a clear explanation as to the reasons for the changes to her will. There was no question in the solicitor’s mind about the testamentary capacity of the deceased and he was satisfied that the changes reflected the deceased’s wishes and that she understood them.

After careful consideration of the facts of the case and accepting the solicitor’s evidence, it was held by the Court that whilst suspicious circumstances did arise, the deceased did know and approve the contents on her will.

Comment – A family member’s needs and wishes are usually at the forefront of a willmaker’s mind when preparing their will. However, what this case highlights is that even in circumstances where family members do place an element of pressure on a willmaker to influence the will in a certain way, despite that pressure, if the willmaker has testamentary capacity and clearly understands and approves the contents of his or her will then they have not necessarily been the subject of undue influence. This case also demonstrates the importance of a professionally prepared will. The evidence of the solicitor was strongly accepted by the Court but it is questionable whether the Court would have come to the same conclusion if the deceased had prepared a “homemade will”.