If you are laughing at the circumstances described above because they seem too ludicrous to be true, we may have to burst your bubble.
This kind of situation can and does happen – the sudden discovery of a new will. It’s often up to the court to decide if the new will was made in suspicious circumstances and whether to declare it valid.
How does the court decide if the will is valid?
If a will is to be valid then there are the requirements as set out in statute:
- a formally compliant will being in writing, signed by the willmaker in the presence of two witnesses; or
- a non compliant will but found by the court to be a document intended by deceased to be a will; and
and the common law requirements of a valid will which include:
- the willmaker has sound mind memory and understand;
- the willmaker intended the document to be a will;
- the contents of the will have the knowledge and approval of the willmaker; and
- the will must not be one secured as a result of undue influence or fraud.
Where the preparation or execution of the will was surrounded by suspicious circumstances the presumption of knowledge and approval cannot be relied upon.
What if there are suspicions about the will?
The party who raises suspicion must call evidence which raises a real or tangible suspicion as to the validity of a will.
Examples of Suspicious Circumstances
Common examples of suspicious circumstances include:
- The person who prepared the will benefits under the will.
- Where the origin of the will is dubious (as in the case of Stooge v. Strumpet)
- Where the willmaker was enfeebled, blind or illiterate at the time of execution
- Where the will maker has a cognitive impairment;
- whether there has been a significant change in testamentary bounty Eg: As with Stooge, his inheritance has suddenly shrunk from $5 million to $50
Origin of the will is dubious
A real life example of Stooge v Strumpet occurred in New South Wales in the case of
Alan John Hyland as executor of the estate of the Late John Walter Popham Luscombe v Laura Healey  NSWSC 1513
Herbert Walter Luscombe was a retired bank manager. On 27 July 2006, at the age of 98, he made a will. Under the will he left everything to his nephew, John Luscombe and appointed him as executor. Three years later, in 2009 Mr Luscombe died. Probate was granted over an estate worth over $3 million.
In July 2009 John’s solicitor received a letter sent on behalf of the defendant, Ms Healey. That letter alleged that Mr Luscombe had made a will on 28 October 2006. This appointed Ms Healey as executrix and left all of Mr Luscombe’s estate to her, with the exception of a $200,000 legacy to John.
Ms Healey claimed that she had befriended Mr Luscombe in about 1992 when he was 84 and she was 58. Her evidence was that for the next seventeen years she was a regular visitor to Mr Luscombe’s home and that their friendship extended to sexual intercourse.
But John had never heard of Ms Healey.
Ms Healey never attended school and was unable to read or write. Ms Healey said that she first met Mr Luscombe in about 1992, when she was visiting her late father in a nursing home in Homebush, close to Mr Luscombe’s home. Ms Healey’s evidence was that one day she met Mr Luscombe at a shop which was opposite the nursing home. Mr Luscombe stopped to talk to her. He asked her where she was from and what she was doing there. Ms Healey says she told Mr Luscombe something about her life. At the end of that first conversation they agreed to meet at the shop again the next day.
In about 1995 they started a sexual relationship. They would only ever meet at his home and they never left the house. They never spoke on the telephone to each other. No one ever saw them together. She would arrive unannounced and drive back home if Mr Luscombe was not there.
The first matter which should arouse suspicions is the almost complete change in Mr Luscombe’s testamentary bounty only three months after the July Will.
Second, the features of the terms of the October Document itself were suspicious:
- the odd handwritten dating of the October Document;
- the misspelling of Mr Luscombe’s middle name;
- the use of Ms Healey’s sister-in-law as the substitutionary beneficiary;
- the reference to John;
- the way in which Mr Luscombe wrote his name; and
- the absence of a provision for cremation.
Third, the preparation and execution of the October Document was suspicious.
The use of a solicitor different to the one who had prepared the July Will and who had no apparent prior connection with Mr Luscombe or anyone else other than one of the attesting witnesses was unusual. There were questions about whether the solicitor named as having prepared the will, Mr Harley, in fact prepared the October Document.
His honour found:
Having considered all of the evidence I am not satisfied that the October Document is Mr Luscombe’s last will and testament made as a free and capable testator. This is because Ms Healey has failed to establish affirmatively to my satisfaction that Mr Luscombe knew what he was doing when he executed the October Document. She has failed to do so because she has been unable to dispel the suspicions which I have considered above.
If a client finds themselves in such a predicament or there are any concerns about the validity of a will, seek legal advice immediately.
Bryan Mitchell is an Accredited Specialist in Succession Law (Qld) and plays the part of Stooge.
Thanks to Mahera Saunders, Accredited Specialist in Succession Law (Qld) for playing the part of Strumpet.