Setting aside a signed Will

Wills and Estates: 18 July 2023

Author: James Penman - Our People

The Court can set aside a Will, even if the person signing the Will had testamentary capacity and wanted to sign their Will.

In the recent decision of Wehbe v Giotopoulos [2023] NSWSC 827 (14 July 2023), Darke J found that the deceased did have capacity at the time of signing her Will, but that she did not have 'knowledge and approval' of the Will's contents.

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Where a Will is validly signed and appears rational, there is a presumption that the deceased had knowledge and approval of the Will's content and was mentally competent at the relevant time.

However, this presumption of 'knowledge and approval' can be displaced where there are 'well-grounded suspicions or doubt' as to whether the Will reflects the deceased's wishes.

'Suspicious circumstances' commonly includes a beneficiary of the Will playing a part in preparing and signing the Will.

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In this matter, the deceased's Will was prepared by one of her sons (a beneficiary of the Will) and its signing was witnessed by two other sons (also beneficiaries of the Will).

However, there was no independent evidence before the Court as to the preparation and signing of the Will. There were two other witnesses to the signing of the Will that filed affidavits in the proceeding, but neither appeared in Court for cross-examination and so their affidavits could not be relied upon by the plaintiffs.

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In the absence of evidence from independent witnesses regarding the signing of the Will, the Court could not be satisfied that the deceased knew and approved the contents of her Will at the time she signed it.

The Court dismissed the plaintiffs' application for a grant of probate and made orders declaring that the deceased died intestate (i.e. died without leaving a Will).

Download: Wehbe v Giotopoulos [2023] NSWSC 827 (14 July 2023).pdf