Challenging a Will

Disputes over wills frequently involve the “unholy trinity”:

• testamentary capacity,
• eligibility to claim and 
• whether proper provision has been made for a party.

A recent decision of Chisak v Presot [2022] NSWCA 100 dealt with all 3 issues in a claim by a granddaughter of a deceased.

Facts

The appellant, Ivy challenged the validity of a will signed on 26 April 2017 by her grandmother Lily who died on 8 September 2017 aged 87. 

By the deceased’s earlier will of 2009, the deceased gave each of her executors a legacy of $7,500 and gave a legacy of $5,000 each to two other friends. She left the residue of her estate to the appellant upon attaining the age of 25.

The deceased’s will of 26 April 2017 revoked the 2009 will. The deceased left the whole of her estate to 4 friends and neighbours, and the appellant in equal shares as tenants in common.

The appellant sought a grant of probate in solemn form of the will made on 3 June 2009. She sought revocation of a grant of probate in common form of the 2017 will made on 15 November 2017.

The primary judge, Hallen J, held that :

• the deceased did not lack testamentary capacity in relation to the 2017 will 
• the appellant is not an eligible person within the meaning of s 57(1)(e) of the Succession Act 2006 (NSW), and
• even if the appellant were an eligible applicant, her share under the deceased’s 2017 will was not less than adequate for her proper maintenance, education or advancement in life.

The principal issues on appeal were :

1. whether the 2017 will was invalid on the ground that the deceased lacked testamentary capacity and did not know and approve of the contents of the will,

1. whether the appellant was an eligible person within the meaning of s 57(1)(e) of the Succession Act 2006 (NSW), and

1. whether the primary judge erred in holding that adequate provision had been made for the appellant’s maintenance, education or advancement in life.

The Court dismissed the appeal.

Issues decided on Appeal

As to issue (i) testamentary capacity

1. The 2017 will was not invalid on the ground that the deceased lacked testamentary capacity or did not know and approve of the contents of the will: Despite suffering a stroke, and having language difficulties, Court considered that the medical evidence did not indicate a lack of capacity, and accepted the evidence of the solicitor who took instructions on the will and spoke to her and kept careful notes and described the deceased as being “as sharp as a tack”.

As to issue (ii) eligible person

1. The appellant was an eligible person within the meaning of s 57(1)(e) of the Succession Act 2006 (NSW).

1. Section 57(1)(e) of the Succession Act provides that an eligible applicant for a family provision order includes:

“(e) a person—

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,”

In finding the Applicant an eligible person, the Court considered the authorities to approach to the question of “dependency”.

White J said:

1. I respectfully doubt that it is legitimate to read into s 59(1)(e) a requirement that partial dependency be “significant” rather than “more than minimal”. Section 57(1)(e) is merely a gateway for the court to consider whether there are factors that warrant the making of an application for provision by a grandchild out of his or her grandparent’s estate (s 59(1)(b)), and if so, whether provision ought to be ordered (s 59(1)(c)). The degree of dependence for a particular period of time will no doubt be relevant to those issues. With due deference to the reasons of Palmer J in Simons v Permanent Trustee and Re: Sherborne Estate and Basten JA in Page v Page, I do not think it appropriate to conflate questions relevant to those issues, such as whether the degree of dependence was such that the grandparent assumed parental responsibility for the grandchild, with the factual question of whether the grandchild did depend on the deceased for particular periods of time. I do not accept the primary judge’s reasons on this issue at J [329] quoted above.

1. I conclude that Ivy passed the threshold of establishing that she was an eligible applicant.

As to issue (iii), adequate provision

The Appellant had submitted that adequate provision would be in the order of 50-60% of the estate by reason of her mental illnesses, poor financial position and significant need for accommodation. 

However-the Court found that there was no ground for intervention in respect of the primary judge’s finding that adequate provision had been made for the appellant’s maintenance, education and advancement in life.

Summary

This decision illustrates the grounds for challenging a will are often complicated by a range of unique and individual facts and circumstances.

Proper legal advice must be sought before any will is challenged.

If you wish to challenge a will or if you are an executor and a will is challenged, please do not hesitate to contact us.