The circumstances were enough to make anyone suspicious.

Despite a previous will in 2001 leaving everything to her husband and, if he died before her then to each of his five nephews in equal shares, Nadia’s more recent will left everything to a woman whom she described as ‘my daughter Georgette’ even though they were totally unrelated.

While this alone might have been enough to raise questions about the validity of the will, the circumstances under which the will came to be created were remarkable.

Nadia, the testatrix (the person who made the will) was in the final stages of metastasised breast cancer and had been released from palliative care in December 2014.  She was then taken by Georgette and Georgette’s son to a lawyer who had never met Nadia.  The lawyer had already written up the will as well as a power of attorney in favour of Georgette based on lies that Georgette’s son had told the lawyer which Georgette knew about.  These included the lie that Georgette was Nadia’s daughter.

Nadia died on 2 April 2015.

Shortly after the will and power of attorney were signed by Nadia, Georgette transferred Nadia’s home, which was valued at around $725,000.00, into her own name for only $1.00.  Following that, and just three days before Nadia’s death, Georgette withdrew over $17,000.00 from Nadia’s bank account by way of a bank cheque in favour of her son, leaving a balance of 92 cents.  The explanation for this was that the funds were used to pay for Nadia’s funeral, although the Court noted there was no explanation as to why the cheque was in favour of her son and why the funds had been taken before Nadia had died.

When the nephews challenged the will, the Court had to investigate whether Nadia had ‘testamentary capacity’ meaning that she knew and approved of the will that she signed.  This involved hearing evidence from various people who had dealings with Nadia at around that time, including a friend and her medical specialists.

While Nadia was undergoing treatment for her cancer Georgette regularly accompanied her to medical appointments and took Nadia into her own home.  The Court said that such conduct is ordinarily laudable, but in this case had to be assessed against the fact that Nadia’s oldest friend was kept away from her (even from her funeral) by being falsely told that Nadia didn’t want to see her, along with the transactions that Georgette and her son entered into on Nadia’s behalf.

The medical evidence was clear that around the time that she signed the Will, Nadia was in great pain.  She was having chemotherapy every three weeks and was also suffering sciatica and a shoulder injury following a fall.  The will was executed on 12 December 2014, just a week after she had been discharged from hospital.  There was evidence that in December 2014 there were metastases (or secondary cancerous growths) in her brain.  Although she was taking painkilling prescription drugs throughout this time, the Court found that the evidence showed these did not impair her cognitive functions but nevertheless, her alertness was declining.

The Judge who first heard the case regarded Georgette and her son as unreliable, saying that Georgette was ‘prepared to invent evidence to improve her case.’

Nadia’s friend Mary, who had been kept away from Nadia in her last months, gave evidence that Nadia would say to her that the house was for Raghib’s (her husband’s) nephews.  Even in late 2014 Nadia said to her, “I leave all my money and house to my nephews.”  When Nadia was diagnosed with cancer, and around the time that the will was signed, Nadia would say to Mary, “I start to forget things, my mind no very good,” and, “I can’t think straight Mary.”

Nadia’s radiation oncologist gave evidence that when she was in hospital in the first week of December 2014 Nadia showed no signs of confusion.  Nadia had been prescribed an opiate pain relieving drug but the oncologist said that would not usually affect a person’s ability to make decisions.  On the other hand, the brain metastases could cause changes to personality and memory although that wouldn’t necessarily be the case.

What was significant to the Court was the evidence of Nadia’s GP that on two dates in December Georgette’s son came in on Nadia’s behalf to obtain further prescriptions for pain killers and that Nadia did not attend on those occasions.  This suggested a deterioration in her condition since the doctor last saw her.

What is sufficient to dispel any doubt or suspicion regarding a will varies with the circumstances of each case.  If suspicious circumstances are established then the burden of proving that the deceased person was a ‘free and capable testator who knew and approved the contents of the Will’ falls on the party asserting that the Will should be admitted to probate.

One area that gives rise to such a suspicion is when the person who prepares the will for the testator stands to take a benefit from it.  The Courts have said that when this suspicion is created, it must be removed by the person seeking to rely on the will.

In this case, the Court thought that it was ‘bristling with suspicious circumstances’.  These included among other things the facts that:

• Georgette’s son who lived with his mother and stood indirectly to benefit from the will was the person who gave instructions to the lawyer rather than Nadia herself;
• That Nadia left nothing to her church when in her previous wills she had done so;
• Georgette and her son were present when the will was made;
• The lawyer drafting the will was told by Georgette’s son that she was Nadia’s daughter;
• There was a sense of urgency to get the will and power of attorney executed at a single meeting.

Another important question raised by the Court was, “Why was there a need for a power of attorney in any event?”  Nadia was dying and as she was in palliative care she would never move into a retirement village.  Her home was her only substantial asset so there was no real need for her to have a power of attorney.  The only reason that the Court could think of was to be able to misuse it in the event that Nadia didn’t ‘speedily die’.

Importantly, the Court has said that proof that the will was read by or read to the testator before its execution, or that it was explained to the testator, might not be enough and it is necessary to look at the evidence as a whole.

The Court concluded that given the way in which the will came to be prepared and executed, Georgette had not established that it should be admitted to probate.  On that basis the Court ordered that Nadia’s earlier will from 2001 leaving everything to the nephews and her church was to be admitted.  The house that Georgette had transferred into her own name for one dollar was to be conveyed back to the estate.

It isn’t unusual for someone who is going to benefit from a will to assist the will maker create that will, and as this case highlights, when that happens the Court will ordinarily treat the circumstances as suspicious.  It is much better to engage a lawyer to draft the will who can not only act independently but will be in a position to give evidence to establish the genuineness of the will if it is challenged.

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197