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    When a Will is made in suspicious circumstances

    Aug 22, 2019 5:10:00 PM

    If you are concerned that a Will was signed in suspicious conditions, you are able to challenge it. The NSW Court of Appeal in its recent decision of Mekhail v Hana; Mekail v Hana [1] had reason to consider this question and identified the major legal principles to be considered for a suspicious Will.

    The relevant facts

    Nadia Mekhail had prepared Wills in 2001 and 2014. In the 2001 Will Nadia had left legacies of $10,000 to two Coptic churches, and her residuary estate to her husband and, if he predeceased her, to each of her husband’s five nephews in equal shares, including Magdy and Youssef who were the appellants.

    The 2014 Will left the entirety of Nadia’s estate to “my daughter Georgette Hana” and appointed her sole executrix. In the event of Georgette predeceasing Nadia, it left the whole of Nadia’s estate to Georgette’s husband, “my son in law Adel Hana”, and appointed him sole executor. The descriptions in the Will of Georgette as Nadia’s daughter and Adel as her son-in-law were wrong. They were actually not related to Nadia.

    At the time she executed the 2014 Will, Nadia’s main asset was her home in South Strathfield, which was unencumbered and which she had formerly owned jointly with her husband Raghib.

    The questions for consideration

    If it is determined that the Will was made in ‘suspicious circumstances,’ it raises the questions if the deceased:

    • had testamentary capacity and
    • did they know and approve the Will?

    In this particular case the Court of Appeal records “…..on any view the suspicious circumstances’ attending its execution are powerful. Georgette and her son Bishoy attended upon a solicitor in late 2014 together with Nadia, who had been released from palliative care, in the final stages of metastasised breast cancer.”

    “The solicitor had never previously met or spoken with Nadia. However, (at the first conference with Nadia) he had already drafted a Will leaving the whole of her estate to Georgette and appointing her executrix. He had already drafted an Enduring Power of Attorney in favour of Georgette. Both documents were based on a series of lies made to him by Bishoy with the full knowledge of Georgette (as the primary judge found). The most striking lie was that, contrary to what the solicitor was told and what appeared on the face of the Will which the primary judge admitted to probate, Georgette was not Nadia’s daughter. Nor was Georgette Nadia’s next of kin. The two women were unrelated.”

    “A few weeks after Nadia executed the 2014 Will, Georgette purported to transfer Nadia’s only substantial asset, her home in Strathfield, to herself, for nominal consideration, pursuant to the Power of Attorney executed by Nadia at the same conference with the solicitor. The transfer was registered. The primary judge found this transaction to be in breach of duty and would have set it aside but for admitting the 2014 Will to probate.”

    The Court took particular note of the following facts:

    • In April 2015, after the solicitor knew that (a) Georgette had (with his assistance) transferred Nadia’s house to herself for $1, (b) that Nadia had died and (c) there was a dispute with the appellants about the validity of the will; the solicitor destroyed his file note of the 12 December 2014 conference during which Nadia executed the Will. The solicitor created a new file note, backdating it with the effect that it conveyed an impression of contemporaneity.
    • On the day of Nadia’s death there was a cash withdrawal of $1,000 from a bank at Kogarah. That was preceded by a large withdrawal three days before Nadia’s death when a bank cheque in favour of Bishoy was withdrawn from Nadia’s account. The bank’s internal documentation had handwriting saying “Georgette Hanna POA” suggesting that Georgette purchased it using the Power of Attorney. At trial, it was said that “the explanation for this was that the money was to be used to pay for Nadia’s funeral.” Why a bank cheque to pay for Nadia’s funeral was (a) made out to Bishoy, and (b) purchased before Nadia had died, seems not to have been explored in the evidence.

    In practical terms because ‘suspicious circumstances’ attended the execution of Nadia’s Will, it was necessary for the propounder (the person putting the Will forward to be valid) to allay those suspicions.

    The Appeal Court noted that Nadia’s 2014 Will satisfied the statutory requirements of the Succession Act 2006 (NSW). However, before the document was admitted to probate, the judge also “needed to be satisfied that it did truly represent the testator's testamentary intentions; or, to use the traditional phrase, that the testator ‘knew and approved’ its contents”: This is also seen in Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879 at [59], and affirmed in Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [16] and [43].

    Although in this case those benefiting from the new Will also played a part in its preparation, it is for the propounder to show “the righteousness of the transaction”, namely, that the testator or testatrix knew the contents of the Will and appreciated its effect, so that it can be said that the Will contains the real intention of the testator or testatrix.

    Therefore, discharging the responsibility of the propounder is unique to the case. As Meagher JA said in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [48]:

    In this context the statements prescribing ‘vigilance’ and ‘careful scrutiny’ and referring to the court being ‘affirmatively satisfied’ as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters…”

    It was necessary to determine the full nature of the suspicious circumstances – “the source and nature of any doubt or suspicion” – as part of the evaluation of whether Georgette’s burden had been discharged. Mechanical approaches have long been rejected in this area of the law.

    The decision of Tobin v Ezekiel [2]  is particularly helpful. At paragraph  [47] of that judgement it was said:

    “What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose ‘as heavy a burden as can be imagined’. Those circumstances may include

    • the mental acuity and sophistication of the testator,
    • the complexity of the Will and the Estate being disposed of,
    • exclusion or non-exclusion of persons naturally having a claim upon the testator, and
    • whether there has been an opportunity in the preparation and execution of the Will for reflection and independent advice. 
    • “particular vigilance is required where a person who played a part in the preparation of the Will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction...”

    This statement is not exhaustive. It will always depend upon the circumstances of the particular matter.

    The Court of Appeal in making its orders regarding the matter of Mekhail granted probate in solemn form of the will dated 27 March 2001 to the New South Wales Trustee & Guardian.

    If you have further questions, please contact Andrew Frank at afrank@franklaw.com.au

    This is not legal advice. 

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

    [2] (2012) 83 NSWLR 757; [2012] NSWCA 285

    Andrew Frank

    Written by Andrew Frank