Pitfalls of Will Kits

Shad Partners recently acted for a Defendant in NSW Supreme Court proceedings challenging the validity of a Will.

In summary, the facts of the case were that:

1. The late Wadad Wehbe (“the Deceased”) passed away on 10 February 2021.
2. The Deceased was survived by her 5 children (3 sons and 2 daughters), all of which she had a fairly close relationship.
3. The Deceased left a purported Will dated 8 July 2020 (“the Will”).
4. The Deceased was recently widowed at the time the Will was made.
5. At the time the Will was made the Deceased was a frail lady, 68 years of age, in declining health, and highly dependent upon her 3 sons, with whom she lived with, for her daily care. In addition, the Deceased had a very limited ability to read and understand written English with a clear preference to communicate in the Arabic language.

The Will in dispute was purchased by the Deceased’s sons from eBay, written by him in his handwriting and asserted by him to have been witnessed by 2 of his close friends of many years in the presence of the 3 sons. The Will left the whole of the estate to the 3 sons, thereby excluding the Deceased’s 2 daughters from the estate.

Shad Partners acted for one of the Deceased’s daughters who disputed the validity of the Will on the grounds that it was not executed in accordance with the Succession Act 2006 (NSW) and that the Deceased did not know and approve the contents of the Will. The daughter asserted that there were various grounds which created a well-grounded suspicion or doubt as to whether the Will expressed the mind of the Deceased. Those grounds were:

1. The Will was not prepared by a legal practitioner,?but was rather prepared by the Deceased’s son, a beneficiary under the Will who had purchased the will kit on his own accord and not at the direction of the?Deceased;
2. The purported witnesses to the Will were close friends of the beneficiaries under the Will (the Deceased’s 3 sons);
3. The beneficiaries under the Will were present when the Will was prepared and?executed;
4. The Deceased was frail and vulnerable, and suffering from poor health at the time the Will was?executed;
5. The Deceased was wholly dependent upon her 3 sons for the provision of care at the time the Will was?executed;
6. The Deceased was easily manipulated, and susceptible to the influence of?others;
7. The Deceased believed?she was making a Power of Attorney rather than a?Will;
8. The Deceased was unable to read or write English, and the Will was not read to her in?Arabic;
9. The Will excluded the Deceased’s daughters as beneficiaries, even though they were not estranged from the Deceased and were natural objects of her testamentary bounty; and
10. The Will was retained in the possession of the Deceased’s son.

At Hearing, the Court determined that the suspicious circumstances asserted by the Defendant had been established. The effect of that finding was the burden shifted to the Plaintiffs’ to establish that the Deceased knew and approved of the contents of the Will.

Remarkably, the Plaintiffs’ friends who had apparently witnessed the Will, and had made Affidavits, did not attend for cross-examination despite notice having been given requiring their attendance for that purpose. In those circumstances, the Court ruled that their Affidavits could not be used.

The effect of that ruling was that in order to discharge the burden, the Plaintiffs were relying on their own testimony to establish that the Will was executed in accordance with the Succession Act 2006 (NSW) and that the Deceased knew and approved the contents of the Will.

His Honour Darke J had reservations concerning the evidence of each of the brothers, the inconsistencies between their accounts, and a lack of corroboration by any other witness.

Ultimately, the Court made a finding that the Will was not executed in accordance with the Succession Act 2006 (NSW) and that the Plaintiffs failed to discharge their burden of establishing that Deceased knew and approved the contents of the Will at the time she signed it.

The findings by the Court meant that the Will was not admitted to Probate and because the Deceased passed away without having made any earlier Will the estate passed to all 5 children equally pursuant to the rules of intestacy.

A fantastic result for our client and a great effort by the team including Ahmad Karnib Solicitor, Justin Brown Barrister and Patricia Muscat Barrister. ?

Wehbe v Giotopoulos [2023] NSWSC 827

https://www.caselaw.nsw.gov.au/decision/1894d9a023815a7613cee5ca