Estate Claims: Challenging Suspicious Wills

12 Mar

Introduction

The incidence of the division of property on death is the familial equivalent of neighbourly fencing disputes. The relationships of once harmonious families are rent asunder, often irrevocably. This can be advertent or inadvertent on behalf of the testator. It can be because of expectations, justified or unjustified, by an expectant beneficiary. And these feelings and expectations can result in litigation that see private affairs traversed through a very public judicial system. This is made all the worse by the salacious appetite of the modern media.

Before engaging in litigation of this nature, parties need to think carefully. This involves considering the impacts on families, on individuals, and on broader relationships. If the decision is nonetheless taken to do so, it should be done in an informed way. And there should be a good claim that justifies the decision being taken.

There are two primary types of will claims. The first are claims that attack the validity of a testamentary instrument, usually because of suspicious circumstances of one kind or another. The second accept the validity of the instrument but assert that the claimant should be entitled to some or all of the estate property. This paper discusses the first kind of claim. Another paper will discuss the second kind.

If you are bringing or defending a claim that a will is suspicious, reach out to me. I act on many cases involving wills, estates, probate, trusts and equity and will be able to assist.

Wills made in suspicious circumstances

The phrase, “suspicious circumstances” is used here with a healthy degree of dramatic flair. Not all bases to attack the validity of testamentary instruments are clothed in nefarious design and may instead reflect innocent failures or deficiencies. This paper addresses a range of circumstances which may prove fatal to a will ranging from relatively familiar issues such as a lack of capacity or undue influence while also raising more obscure matters such as fraudulent calumny.

Lack of testamentary intent

It is an essential character of a will that it be testamentary. That is to say the document is not intended to take effect until the event of death. Probate will not be granted for a will if evidence demonstrates it was signed without testamentary intention.[1] In Whyte v Pollok, Lord Selborne said the following on the topic of testamentary intent:[2]

It is a proposition universally true that nothing can receive probate which was not intended to be a testamentary act by the testator. Of course, it might happen that something which he did not originally intend to be a testamentary act was converted into a testamentary act by a subsequent and sufficient manifestation of intention on his part, but either at the time when the act was originally done or at some other time he must, in a sufficient way, manifest his purpose that it should be a testamentary act.

The will-maker (sometimes called the testator or testatrix) must have the requisite intention to make a valid will (also referred to as animus testandi) at the time he or she makes a will. In investigating the presence or absence of the required intention, judges have consistently taken a pragmatic approach and eschewed appeals to errors, inaccuracies, amateur drafting, or other technical failings. Several examples of this approach follow, decided in a variety of circumstances and over a considerable span of time.

In Green v Skipworth, at issue was a will made by interrogatories.[3] Sir John Nicholl agreed that a will could be made by interrogatories and said a court must be “more jealous of capacity, and more strict in requiring proof of spontaneity and volition than I would be in an ordinary case. But if there is clear capacity, if there is the animus testandi, and if the intention is reduced into writing, the Court must pronounce for it”.

In Guardian, Trust, and Executors Company of New Zealand Limited v Inwood, at issue was a will that reflected the will-maker’s intent, save that she signed a will containing her sister’s name rather than her own.[4] The two sisters, Maude and Jane, had decided to make identical wills. The only mistake was that the will signed by Jane (in respect of which probate was sought) referred to Maude being the will-maker. On the application for probate, the defendants, who would have taken the property on an intestacy, said the will could be admitted to probate because it was not executed “animo testandi” for the only reason that the will-maker did not intend to sign the document, and the particular document was never intended to take effect as her will. The Court rejected this argument as technical and artificial, and admitted the will to probate by omitting the word, “Jane” from the will.

In Re Griffiths (Deceased), one issue for the Court was whether a homemade document was intended as a will.[5] The document was undated, handwritten, signed by two persons beyond the maker, and lacked an attestation clause or express appointment of an executor. After a careful examination of the words in the will, which contained repeated reference to post-mortem matters such as life insurance and the treatment of residuary estate, and phrases including “after Jack dies” and “to remember me”, the Court was comfortable concluding the will-maker had the requisite testamentary intent.

In re Milling (Deceased) (No 1) was a case where a member of the armed forces destroyed a will with the intention of revoking it. He wrote to his father explaining why and said that he had made a new will, also describing the contents of that new will.[6] Following his death in Turkey during World War I, the new will was lost, or could not be found. The Court refused to admit the letter to probate on the grounds it did not evince the required animus testandi. However, the fact that the deceased was a soldier proved to be the salvation of the testament, because no particular form was required for a will made by a solider on active duty. The Court therefore held that the statement in the letter was sufficient proof of the existence of a will, was also admissible as evidence to prove the contents of that will, and that administration should therefore be granted with the testamentary parts of the letter annexed.

Despite the Court’s willingness to “save” testamentary instruments in appropriate circumstances, it remains a fundamental requirement of will-making in New Zealand that the will maker have the intention of acting in a testamentary capacity. If that is not the case, the will will not be admitted to probate. This is so even with more modern and liberal statutory validation mechanisms (such as under s 14 of the Wills Act 2007). Even in those claims it has been said that the burden of proving the unsigned document represented the testamentary intention the deceased lay with the party making the allegation.[7]

Want of Knowledge and Approval

For a will to be valid, the will-maker must know and approve of its contents.[8] The Court of Appeal has said that “[k]nowledge of the contents, of course, is a prerequisite for validity”.[9] This requirement applies not only to the will as a whole document, but also to its constituent parts.

In most cases, knowledge and approval is presumed by the fact that a will is duly executed in accordance with the requirements of the Wills Act 2007 (and its antecedent in the Wills Act 1837 (UK)). That conclusion is only buttressed where the will has been duly read over to a capable will-maker on the occasion of its execution or its contents have been brought to their notice in any other way. However, where there are suspicious circumstances in the making of the will, the propounder can be required to adduce evidence which alleviates this suspicion and positively proves the requirement of knowledge and approval.[10] This rule, expounded in Barry v Butlin, has been referred to as an evidential rule. In Estate of Fuld (deceased) (No 3), Hartley v Fuld (the Attorney-General intervening), Scarman J said the following:[11]

It is sufficient now to indicate that it is a rule which in certain cases requires of the Court vigilant care and circumspection in investigating the facts of the case. It is a rule which calls on the court not to grant probate without full and entire satisfaction that the instrument did express the real intentions of the deceased.

Archetypal suspicious circumstances include where the will was not read over to the will-maker before execution or where an architect of a will benefits by its terms.[12] Relevant are the words of Lord Simonds:[13]

It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the Court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.

The nature of want of knowledge and approval is sometimes equated with a judicial assessment of the “righteousness of the transaction”.[14]

If the propounder of the will cannot satisfy the Court and meet the evidential onus, the document will not be admitted to probate. If this occurs, then one of the following two consequences will follow in almost all cases:

First, a prior will with no validity concerns will be admitted to probate. If this follows a trial, it will be admitted in solemn form.
Secondly, if there is no prior will then an intestacy occurs, and the property of the deceased will be held and distributed in accordance with the terms of the Administration Act 1969.

In Puru v Puru, the High Court confirmed (as is trite) that a claim of want and knowledge and approval is conceptually distinct from a claim of undue influence.[15] To establish a claim in want of knowledge and approval, the following principles can be derived from the cases discussed below (and others):[16]

Although the will-maker knew and approved of the contents, the paper may still be rejected on proof of establishing, beyond all possibility of mistake, that he did not intend the paper to operate as a will.
although the will-maker knew and approved of the contents, the paper may be refused probate, if it be proved that any fraud has been purposely practised on the will-maker in obtaining his execution thereof.

This issue is litigated with some frequency in New Zealand and other courts.[17]

Lack of due Execution

For a testamentary document to be a will, there are several formal requirements which must be complied with. Pursuant to the Wills Act 2007, and assuming the “will” at issue meets fundamental requirements of being a document,[18] a testamentary document must be executed in a particular way. A will must:

(a) be in writing;

(b) signed either by the will-maker or by a person on their direction and in their presence;

(c) must occur in the presence of two witnesses who must be present when the will-maker either signs or attests to another having signed at their direction (alternatively, the witnesses may be present when the will-maker acknowledges the will was signed earlier in accordance with (b)); and

(d) the witnesses attest and sign the will in the will-maker’s presence.

Issue may be taken on technical points for several of the elements explained above. For instance, whether the necessary parties have “signed” the document. The Court will enquire into whether whatever is inserted as a “signature” was intended as an authentication by the will-maker of the contents of the document. A range of marks may suffice. A testatrix who “signed” her will with the phrase “your loving mother” was held to have signed the document,[19] while a testator who had partially completed his signature and then finished it after the witnesses had left was held to have not signed the will.[20] While electronic signatures are unlikely to be compliant, signatures hand-written via electronic means, such as with a stencil on an iPad, are likely to be acceptable.

Technical quibbles may also arise in respect of whether the witnesses were sufficiently “present”. The test is that the witnesses must have been able to see the testator sign if they had chosen to look and vice versa. There is uncertainty as to whether a blind witness is therefore able to fulfil this role, and cases exist indicating they cannot.[21]

Should there ultimately be a failure in fulfilling the requirements of s 11, then validation of the will under s 14 may be sought in appropriate circumstances. The section allows applicants to request that the High Court validate a non-compliant will, provided it is satisfied the document “expresses the deceased person’s testamentary intentions”. Prior to that consideration, however, the Court must be satisfied that:

(a) there is a document;

(b) the document appears to be a will;

(d) the document came into existence in or out of New Zealand.

Provided these elements are met, the Court will turn to whether to exercise its discretion to validate the will. As indicated above, the predominant concern is with the will-maker’s testamentary intentions and whether the document in issue expresses those intentions. In doing so, the Court will also consider the usual requirements for a will such as testamentary capacity, knowledge and approval, and that it was created voluntarily.

Testamentary capacity, as [has been/will be] discussed, will not benefit from any presumptions that may follow the due and proper execution of a will; the onus rests on the party seeking validation to demonstrate the deceased was possessed of sufficient testamentary capacity at the time of preparing the document.[22] The procedure in s 14 may also be utilised as an alternative to the rule in Parker v Felgate and may be a less onerous method. In Public Trust v Fairbarin, the will-maker lacked testamentary capacity as at the date of execution, but had provided the instructions for the will some three weeks earlier.[23] Those instructions were recorded, and the Public Trust was able to satisfy the Court that the deceased had sufficient testamentary capacity at the time of the instructions such that the records were validated as the will under s 14.

In approaching s 14 and the assessment of whether testamentary intention has been expressed, the courts take a robust approach. As noted by Mander J in Caird v Caird:

This Court has remarked that a person who in good faith sets out to express his or her testamentary intentions should not have those intentions thwarted by technicalities, and that the Court should endeavour to give effect to the deceased person's intentions. Where there is evidence of the person's testamentary intentions, it is better that they be given effect, in preference to the disposition of property which would take effect under any previous will, or in the situation of intestacy.

While the Court has a residual discretion to not validate a will even if all the requirements of s 14 are met, such a case would likely require exceptional facts and very good reasons. The courts have expressed that failing to validate a will where the section is satisfied would be to undermine the section’s purpose and put to one side the will-maker’s testamentary intentions.[24]

Lack of Capacity

In the canonical case of Banks v Goodfellow, Cockburn CJ described testamentary capacity in these terms:[25]

It is essential … that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.

The elements, as distilled from Banks v Goodfellow, require that the will-maker, at the time of the execution of the will, understand the following:

· That they are making a will and the effect of doing so. This includes an understanding that they are committing a testamentary act.

· The extent of the estate and therefore the property that is able to be disposed of by will.

· Those who have moral claims against the estate which the will-maker ought to give effect to.

· The understanding of the will-maker is not impaired by any disorder of the mind.

It has been said that the Banks v Goodfellow ‘test’ should be viewed as guiding propositions rather than a rigid formula.[26]

Relevant factors

While advances in modern medicine may colour and shift the requirements for a technical assessment of capacity, relatively settled principles and legal considerations applying to modern cases are extant. The following propositions, may be drawn out from the case law:[27]

Because the making of a will involves the discharge of moral responsibility (and is a solemn act) the possession of intellectual and moral faculties common to our nature is essential to the validity of a will. But this does not require “a sound and disposing mind and memory of the highest degree”.[28]
It is critical that the testator understands, in exercising their testamentary power, the following:
- the nature of the act and its effects;
- the extent of property he or she is disposing; and
- the claims which he or she ought to give effect to.
The testator must not be suffering from any mental derangement that shall “poison his affections” or “pervert his sense of right” or “prevent the exercise of his natural faculties” in a way that would not have occurred absent the derangement.
Unsoundness of mind resulting from a lack of intelligence, physical infirmity, or advancing age, can also affect capacity, but
- though capacity may be reduced below the “ordinary” standard there may be sufficient capacity (or intelligence) to commit a testamentary act; and
- a level of capacity required to comprehend a testamentary act is sufficient.
It is not required that the testator possess such capacity to the same extent as previously. His mind may have been in some degree weakened, his memory may have become in some degree enfeebled; and yet there may be enough left clearly to understand and make a sound assessment of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament
·A will maker does not need to view their will with the eye of a lawyer and it is sufficient if he or she understands it, and the dispositions, in simple form.
Physical frailty is not synonymous with unsoundness of mind.
A testator who has reflected over the years on how his property should be disposed of by will is likely to find it less difficult to express his testamentary intentions than to understand some new business.
The burden of proof is on the party propounding the will (usually an executor) to establish testamentary capacity.[29] But proof is only required where a doubt has been raised as to the existence of capacity (which is an evidential onus) and when this happens the standard of proof is the balance of probability.[30]
The issue of capacity cannot be left finely balanced and “[t]he Judge must be able to find that the reasonable inference relating to testamentary capacity can and should be drawn, otherwise the attempt to propound the will must fail”.[31]

Perhaps only of passing interest, it has been said that where a claimant has no moral duties under the Family Protection Act 1955 or the Law Reform (Testamentary Promises) Act 1949, that the will-maker’s “dispositions need not be fair; indeed, they may be brutal as to their outcome”.[32] So too the Court of Appeal has said that “[a] will-maker is free to change [their] will and unfairly and indeed brutally disappoint expectations, providing that is done with a full understanding and capacity”.[33]

A further point of note may be made that, where there is doubt as to testamentary capacity, and there is more than one will, the proper course has been held to be to seek to admit both wills to probate (by application in solemn form) so the court can determine which will to grant probate of.[34] It is not open for parties (usually beneficiaries) to agree by consent that a valid will is not a will; determination of which will ought to be admitted to probate is the role of the Court.[35] At the point of a genuine dispute between validity of two wills a hearing is required. In Re Watson, Gilbert J said that: “[a]n executor is duty bound to carry out the testator’s wishes by taking all proper steps to prove the validity of the last potentially valid will. An executor is not free to choose which will to seek probate for in circumstances where testamentary capacity is in doubt.”[36]

The rule in Parker v Felgate

As a general proposition, it is said that the time for assessment is the date of execution of a will.[37] The rule in Parker v Felgate is an exception to this premise, but its application will be rigorously monitored.[38] Under the rule, if a will-maker had capacity at the time of giving instructions for a will (usually to a solicitor), and the will was prepared in accordance with those instructions, then the will can be valid when actually executed even if capacity has been lost in the interregnum between instructions and execution. In New Zealand, the operation of the rule has been stated in these terms:[39]

Although the Court must find that the will-maker had testamentary capacity at the time the will was signed, consideration also should be given to the state of mind of the testator at the time of giving instructions for the preparation of the will. If the testator’s mental state at the time of giving instructions was sufficiently sound to meet the tests for capacity and then subsequently when the will is signed is capable of understanding that he or she is executing a will prepared in accordance with those instructions, then the will will be proved.

Avoiding capacity claims

It perhaps goes without saying, but the best way to avoid challenges to testamentary capacity is to have a medical assessment at the time of execution or giving of instructions. In Woodward v Smith, the Court of Appeal authorised a checklist when dealing with (possibly) contentious probate issues.[40] These are as follows:

(a) get a letter from the solicitor detailing the legal tests;

(b) set aside enough time;

(d) check that the patient understands each of the Banks v Goodfellow criteria;

(e) record the patient’s answers verbatim;

(f) check facts, such as the extent of the estate, with the solicitor;

(g) ask about and review previous wills;

(h) ask why potential beneficiaries are included or excluded; and

(i) if in doubt as to capacity, seek a second opinion from an experienced professional.

Modern cases

The issue of capacity is frequently litigated. More recent cases include:

Re Gibson:[41] The decision of Mallon J demonstrates that assessments of capacity will also be made in appropriate circumstances where the validation of documents is sought pursuant to s 14 of the Wills Act. The testator, who had no children or living parents, died without a formal will. Two documents were sought to be validated by a friend of the deceased who stood to gain under those documents. The application was resisted by a Ms Mitchell, holder of enduring power of attorney for a Ms Sullivan who was alleged to be the deceased’s de facto partner. Evidence of post-stroke erratic behaviour, unfitness to drive, short-term memory problems, and long-term mental health struggles, among other things, were sufficient to raise suspicion as to testamentary capacity. However, the Court held those factors could not take the case further. Particularly in light of countervailing factors including evidence from the deceased’s GP indicating capacity, evidence from several other parties indicating normal behaviour, and the deceased being able to discuss and consider the proposed documents with coherency. The documents were declared as the valid last will.

Ball v Saint:[42] A previous partner of the deceased’s resisted the executors seeking probate in solemn form of the will. Proximate to the relevant will, the deceased had visited his doctor in a state of some delirium. His doctor observed he was “less mentally astute” but thought this may be the result of a urinary tract infection. In an appointment the following week, after a course of antibiotics, the doctor observed a “significant difference” and said the testator was alert and responsive. The solicitor for the will gave evidence (corroborated by others) that while he doubted the deceased’s capacity at times, he was satisfied as to capacity when the relevant will was executed. Expert psychiatric evidence was also adduced with opinions proffered that the deceased would have had capacity at the time of signing. These factors together persuaded Robinson J the testator possessed the requisite capacity.

Public Trust v White:[43] Over the course of her life, the deceased had signed 14 wills. Two were at issue before the Court, one in 2009 and one in 2019. Evidence was placed before the Court indicating the deceased began experiencing memory loss and the early stages of dementia. Less than a week after signing the 2019 will, she was certified as unfit by her medical practitioner for the purposes of activating an enduring power of attorney. Justice Harvey accepted this established a lack of testamentary capacity for the 2019 will.

Public Trust v Niemann:[44] The will at issue was drafted in early-April 2016. Medical evidence cast doubt on the will-maker’s competence at that time, noting she was under significant dementia-related effects in January of the same year and had had an enduring power of attorney activated in late-April due a lack of capacity and cognitive ability to foresee the consequences of her actions. The Court noted that the mere presence of a dementia diagnosis was not determinative. As at March 2016, the will-maker had been assessed (by the same experienced Public Trust officer who attended the execution of the will) as competent for the purposes of making an enduring power of attorney. Further, the changes made to the will (and the will itself) were uncomplicated. The changes made were logical, and notes accompanying the will supported the reasons for the change. The Court was satisfied as to testamentary capacity.

Undue Influence

Overview and nature of undue influence

If a will has been procured by undue influence, it will be invalid. As a consequence, the will may not be admitted to probate or, should that have already occurred, it may be amenable to an application recalling probate.

The concept of undue influence is one that is difficult to understand, even for solicitors at times, but particularly for lay-clients often acting within the context of an emotionally fraught family disputes and possibly in combination with grief over the recent passing of a loved one. The concept is often taken at titular value, with the words being treated as carrying their ordinary (or even a reduced) meaning and, to truly wear a cynical hat for a brief moment, describing instances where the will-maker has been at all influenced by an opinion the client disagrees with or a person the client is on poor terms with. Many people will consider a loved one has been unduly influenced on their understanding of that term, but the test in equity is notoriously high.

The exacting nature of the test for undue influence is illustrated well by the following quote from the Court in Sefton v Hopwood:[45]

In order to invalidate a will on the score of undue influence, it must be an influence depriving the party of the exercise of his judgment and his free action; it must be such an influence as to induce you to think the will, when executed, is not the will he desired to execute, that he does not benefit the parties whom he would wish to benefit, but that he is doing that which is not his desire and therefore not his will.

It is not mere persuasion of an individual with which the courts will interfere. It is pressure of a nature which, if so exerted, overpowers the volition of the will-maker.[46] Yet further cases have made to summarise the concept of undue influence with terms, phrases, and descriptions such as: “coercion”;[47] influence as an “ascendancy” by one person over another which is used improperly such that the influenced person’s actions are not their “free, voluntary acts”;[48] the gaining of an unfair advantage by an unconscientious use of power by a stronger party against a weaker in the form of some unfair and improper conduct which generally, but does not always, benefits the stronger party;[49] “unfair exploitation” of a relationship;[50] and “victimisation” or “domination”.[51]

The key to all of these cases is that the influence exerted was of such a degree that the deceased was not exercising his or her free will.

The leading case and the legal test — Green v Green

The leading case addressing testamentary undue influence is Green v Green.[52] The facts are as follows.

Hugh Green founded and operated the Green Group. The shares in the Group were owned by the Hugh Green Trust and the Hugh Green Property Trust, so whoever controlled the trusts also controlled the companies.[53] Maryanne was the only one of Hugh’s five children who worked closely with Hugh in the business for any length of time. At February 2010, she held the position of CEO of the Green Group while also being a trustee and director over the main trusts and companies.[54]

At this time, Hugh was diagnosed with terminal cancer. This prompted discussion about succession planning. The previous understanding was that Maryanne would take over from Hugh. However, Hugh began to express the wish that two of his other children – John and Frances – should also become more involved in the business. Maryanne did not believe John was a fit person to be either a director or a trustee.

Hugh made a number of decisions over the next nine months, the combined effect of which was to remove Maryanne completely from control of any aspect of the Green Group, the trusts and Hugh’s estate, the latter being by the execution of a new will on 26 April 2012 appointing John, Frances and a Mr Fisher as executors and trustees of his estate.

After Hugh’s death, Maryanne issued proceedings in the High Court challenging the validity of these decisions on the grounds, inter alia, of lack of capacity and/or undue influence.

The High Court concluded that four decisions made by Hugh – the removal of Maryanne as trustee and director, the appointment of Mr Fisher as director and trustee, and the signing of the April 2012 will, were the result of pressure exerted on Hugh by John amounting to undue influence.[55] This decision was appealed to the Court of Appeal.

The Court of Appeal held that the threshold for finding undue influence in the context of making a will is not that there is no other possible hypothesis for making the will in those terms, as was advanced by the appellants. Rather, the Court must be satisfied that, after evaluating all of the evidence, the circumstances in which the will was made raise a more probable inference in favour of finding undue influence than not. That approach allows appropriate recognition for the special status of formally executed wills without imposing such a demanding standard on those alleging undue influence as to render the doctrine of little or no value in the testamentary context.

The Court of Appeal repeated the applicable legal principles from the High Court as follows:[56]

(a) The overall burden of proof rests on the person seeking to establish undue influence.

(b) The burden of proof is the balance of probabilities.

(c) The person asserting undue influence must show the alleged influence led to the making of the impugned transaction, and the influence was undue in the sense that the transaction was not the result of the free exercise of an independent will on the part of the person at whose expense the transaction was made.

(d) The question of whether a transaction was brought about by undue influence is a question of fact. A party can succeed in establishing this either directly by proving “actual undue influence” or recourse to an evidential presumption which arises where it is established that: (i) the person said to have been subject to undue influence placed trust and confidence in the other; and (ii) the transaction called for an explanation.

(h) The presence of independent advice is one of many factors that may be taken into account in determining whether undue influence is proved. Whether the independent advice helps to establish that the transaction was the result of a person’s free will depends on the facts of the case. Independent advice can help establish that a person understood the decision they were making. But establishing that a person fully understood the act is not the same as establishing that the act was not brought about by undue influence. A person can fully understand an act and still be subject to undue influence.

(i) Allegations of undue influence may succeed in relation to the exercise of powers not just the transfer of property.

The Court of Appeal upheld Winkelmann J’s findings as to undue influence. Her Honour’s was satisfied, first, that Hugh was vulnerable to influence due to his deteriorating condition which was causing, among other things, fatigue, memory loss, and an unwillingness to engage with decisions. Second, John was both aware of Hugh’s vulnerability and in a position of influence as the two spent significant time together. Thirdly, John was bent on removing Maryanne from all matters and exerted pressure on Hugh to this end. This undue influence was assisted by the actions of Mr Fisher, though not deliberately. John gave instructions to Mr Fisher who then provided erroneous advice to Hugh which contributed to some of the impugned decisions. Hugh was no longer operating of his own free will. John and Mr Fisher’s actions also acted to prevent Hugh’s other advisers from mitigating John’s influence. Those advisers were receiving information on critical issues from Mr Fisher, who himself was passing on what John had told him. The Court of Appeal noted the role that independent advisors, or lack thereof, will play in whether a court infers undue influence has taken place.[57] Their effective absence in that case supported Maryanne’s claim.

It has long been held that certain circumstances excite the suspicions of the Court such as where the drafter takes a benefit, where gifts are made to solicitors, and in cases of dramatic change.[58]

Fraudulent Calumny

A claim in fraudulent calumny has never been litigated in New Zealand, but its potential scope and portent is powerful. It amounts to an alternative claim that can be advanced against a will that, if proved, will render the will invalid. To prove a claim in fraudulent calumny the plaintiff needs to prove the making of false statements about someone to reduce their reputation, in the hope that the will-maker will reduce the provision otherwise given to them.

An apt starting point is what is meant by the term “calumny”. An older version of The Concise Oxford Dictionary defines calumny as a “malicious misrepresentation; false charge; slanderous report”.[59] Black’s Law Dictionary defines calumny as:[60]

calumny (kal-əm-nee) n. Archaic. (16c) 1. The act of maliciously misrepresenting someone's words or actions in a way that is calculated to injure that person's reputation. See OBLOQUY (1). 2. A defamatory charge or imputation; esp., an untrue and unfair statement about someone intended to besmirch the person's reputation. — calumnious (kə-ləm-nee-əs), adj. — calumniator (kə-ləm-nee-ay-tər), n

The authors of Halsbury’s Laws of England have described fraudulent calumny as being where “a testator has been persuaded against an otherwise natural beneficiary by dishonest or reckless aspersions cast on that person’s character by someone who benefits thereby”.[61]

It is generally recognised that fraudulent calumny is one of two species of undue influence.[62] The first type, that of coercion, is the most common and is concerned with the situation of pressure that overpowers the testator’s volition without convincing his or her judgment.[63] The second type of undue influence, fraudulent calumny, is more invidious. It is concerned with a poisoning of the testator’s mind, with the effect that the testator, of their own volition, decides to exclude an otherwise natural beneficiary from his or her will.[64] In an ancient case from 1775, Sir S J Fust said the following:[65]

If it should appear … that an old and infirm testator who had bequeathed a legacy to AB had been induced by false and fraudulent representations with reference to the conduct of AB made to him for the purpose by CD to make a subsequent codicil revoking that bequest, and substituting for it a much smaller legacy, the effect of which would be to give a larger share of the residue to CD than he otherwise would take, I conceive that the Ecclesiastical Court would not … grant probate of such revoking codicil provided it could be clearly established … that such act and intention were produced by such false and fraudulent representation.

The modern judicial statement, also cited with approval by the leading probate law text, is that of Lewison J in Re Edwards:[66]

The shorthand used to refer to this species of fraud is “fraudulent calumny”. The basic idea is that if A poisons the testator’s mind against B who would otherwise be a natural beneficiary of the testator’s bounty, by casting dishonest aspersions on his character, then the Will is able to be set aside.

The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the Will is not liable to be set aside on that ground alone.

A much earlier elucidation of the cause of action, which Lewison J clearly drew on in formulating his statement of principle,[67] is found in Boyse v Rossborough.[68] Boyse concerned an appeal against a decree made in the Court of Chancery in Ireland, in a suit to determine whether a certain document was the testator’s valid will. Inter alia, it was alleged that the testator’s wife had estranged the him from the rest of his family. The Lord Chancellor, Lord Cranworth, noted that there was no controversy that the will bore all the requisites for validity in terms of execution and attestation, however, this did not ensure it was an instrument having legal validity: “For … if having sufficient disposing mind, he executed it under coercion, or under the influence of fear, or in consequence of impressions created in his mind by fraudulent misrepresentations,—in none of these cases can the instrument be properly described as being his will”.[69]

As his Lordship analogised, if a man, trusting in his neighbor’s representations, loans that neighbor a horse to go to market, but the neighbor rides off and sells it, the law nonetheless deals with the case as if the horse had been obtained against the man’s will. Similarly, in the context of a challenge to an otherwise valid will, the necessary inquiry is as to whether the instrument in question was the expression of the testator’s genuine will, or the expression of a will created in his mind by coercion or fraud?[70]

A breakdown of fraudulent calumny into its constituent parts was provided by the Court in In re Hayward. The party making the case must demonstrate that:[71]

(a) the individual perpetuating the calumny made a false representation;

(b) to the testator;

(d) for the purpose of inducing the testator to change their testamentary dispositions;

(e) the representations were with the knowledge they were untrue or being reckless as to their truth; and

(f) the testamentary instrument at issue was created only because of the fraudulent calumny.

While the sixth element is expressed with the word “only”, it is not necessary that there be no other reason operating in conjunction with the effect of the fraud for the testator to change their testamentary intentions. The Court in Christodoulides v Marcou clarified that the element was causative, requiring the challenger to prove, on the balance of probabilities, that it was the fraudulent calumny which led to the change. Of course, that conclusion may be resisted by satisfying the Court that it was, instead, a different factor which resulted in the relevant change.[72]

In the same decision, the Court left open the question as to whether when considering a challenge to a will based on fraudulent calumny, the court should apply the usual rule for the tort of deceit or whether there is a stricter rule in the case of wills which requires the challenger to show that the fraud was practised for the specific purpose of inducing the testator to change his testamentary intentions.[73]

The calumny complained of may take many forms … Examples from the case law include emails, regular telephone calls, to the most form of a conversation or tete a tete. The common thread running through these modes of communication is the fact that the defendant poisoned the testator’s mind by casting a dishonest aspersion on a person’s reputation.[74]

The cases

The cause of action continues to be utilised in cases in the United Kingdom.

In Rea v Rea, three siblings challenged probate being sought for a 2015 will by the remaining sister.[75] That will superseded a will from 1986 and left the testatrix’s main asset, the family home, to that sister alone. The previous will had divided assets equally. The claim failed on the evidence that the testatrix was a strong-willed and clear-minded individual who communicated her wishes and understood her 2015 will which represented her genuine testamentary intentions.

The case of Whittle v Whittle saw the claimant son of the deceased alleged various testamentary deficiencies, including fraudulent calumny as against his brother and brother’s spouse.[76] The case is somewhat unusual in that the defendants admitted to having made repeated negative comments about the claimant to the testator, who had changed his will just prior to this death. The Court found in favour of the claimant and granted letters to him. It held the repeated and false negative comments made about the claimant unduly influenced the testator into changing his will.

St Clair v King provides a view as to the evidential requirements and hurdles facing claims in fraudulent calumny, but also more broadly as to the validity of testamentary instruments.[77] The step-daughter of the deceased advanced several grounds on which she disputed the validity of a will. Fraudulent calumny was one basis put forward. Her case ultimately fell considerably short of proving any of the grounds of challenge. This was a conclusion reached, in part, due to the Court’s negative perception of the claimant’s credibility as a witness.

Availability in New Zealand

Fraudulent calumny has a long and storied history within the case law of the United Kingdom, yet it has not established roots in New Zealand. This appears to simply be a matter of absence rather than express and concerted rejection of the cause of action by the New Zealand courts (though is nevertheless surprising given the volume of estate claims made). There is no principled reason the author can see why fraudulent calumny could not be advanced in the appropriate case.

There is a clear evidential hurdle to be grappled with, there always is in causes of action involving allegations of fraud, and this difficulty butts up against the inevitable evidential deficiencies arising from estate claims. But this evidential difficulty has not proven a total bar to claims being made in English cases and should not be disregarded out of hand by New Zealand practitioners faced with the right set of circumstances.

Evidential matters to be aware of in validity claims

When people seek legal advice about wills, they are usually concerned to understand what the substantive outcome might be. This obviously involves advice being given on the law relating to various causes of action, such as undue influence, testamentary capacity, knowledge and approval, fraudulent calumny, etc. However, an equally important part of that assessment is of evidence. Because the evidence at trial must prove the assumptions that a client gives his or her lawyer, it is imperative that practitioners turn their mind to this issue and advise their client accordingly depending on what evidence is available in the circumstances. But this is an aspect often forgotten.

Proceedings that centre upon decedents are evidentially fraught as a matter of course. There is a large body of authority on the manner in which evidence should be approached in cases of this kind. An old case, In re Garnett, settled the following statement of principle:[78]

The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any judge who hears it ought to be, first of all, in a state of suspicion; but if in the end the truthfulness of the witnesses is made perfectly clear and apparent, and the tribunal which has to act on their evidence believes them, the suggested doctrine becomes absurd. And what is ridiculous and absurd never is, to my mind, to be adopted either in law or in equity.

Suspicion in relation to allegations against deceased persons is a theme that has continued to permeate courts of equity.[79] To similar effect were the comments of Latham CJ in Birmingham v Renfrew where it was said that: “[i]t is easy to allege such an agreement after the parties to it have both died, and any court should be very careful in accepting the evidence of interested parties upon such a question.”[80] In Nesbitt v Nicholson, the point was made, from a slightly different perspective, that courts cannot “look into the hearts of the witnesses and somehow divine the truth” but instead can only “find facts on the evidence, properly adduced”.[81]

This reflects the historically cautious approach of the courts to solely verbal evidence, particularly where that evidence is self-serving. So, for example, in Watson v Foxman the following was stated:[82]

[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression for which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

In Street v Fountaine the Court of Appeal weighed, as it was bound to, the impact of the passage of time on memory and the circumstances in which memories are recalled.[83] In Glenn v Watson, the English High Court said that “[d]espite the primacy which our trial system has long given to oral evidence, it is by now a commonplace that the memory even of witnesses who are doing their honest best is often unreliable”.[84]

The following general principles can be distilled:

Courts prefer the documentary record to memory. The case will be cross-checked against the documents to the extent that they exist.
Courts will be inherently cautious about recollection, including the ability to innocently recreate events in a way that is more positive.
Courts will be suspicious of evidence that is self-serving. This is because the deceased cannot speak for themselves so care needs to be taken.

It is important to bear these issues in mind when seeking legal advice. It is critical that the facts alleged can be proved and, if proved, you can obtain the relief you seek.

Conclusion

This note has endeavoured to provide a relatively detailed overview of grounds available to a party who is concerned as to deficiencies present in testamentary instruments. These failures may be broadly divided into three main categories. First, cases advanced on the basis of concerns as to capacity or knowledge and approval direct themselves at considerations internal to the testator/testatrix which give rise to an argument that the will at issue does not genuinely and accurately reflect testamentary intention. Secondly, arguments as to matters such as undue influence or fraudulent calumny are concerned with externalities; matters indicating a third party has exerted their will or influence over the decisions of the will-maker in a manner or to such an extent that judicial intervention is appropriate. The fundament of these two categories is ultimately common. The argument is being made by the claimant that the will at issue is not a true reflection of testamentary intention.

The final manner in which a testamentary instrument may be challenged is technical in nature; that it failed to comply with formal requirements. Here again, although operating in the inverse, the Court’s enquiry in assessing whether to validate non-compliant wills is directed towards whether the relevant document expresses the deceased’s testamentary intentions.

When dealing with such issues, both practitioners and clients should be alive to the challenges inherent to most claims of this nature. These include the interpersonal challenges which arise from disputes, often in emotionally fraught circumstances, as well as the legal and particularly evidentiary difficulties which are likely to be encountered.

[1] Ferguson-Davie v Ferguson-Davie (1890) 15 PD 108; In the Goods of Nosworthy (1865) 4 SW & Tr 44; and Broughton-Knight v Wilson (1915) 32 TLR 146. – Could not find Broughton-Knight (Broughton v Knight is a will-related case from 1873)

[2] Whyte v Pollok (1882) 7 App Cas 400 (HL) at 405. This principle was expanded on in In the Estate of Beech, Beech v Public Trustee [1923] P 46 (CA) at 60.

[3] Green v Skipworth (1809) 1 Phill Ecc 54 at 58–59.

[4] Guardian, Trust, and Executors Company of New Zealand Limited v Inwood [1946] NZLR 614 (CA).

[5] In Re Griffiths (Deceased) [1955] NZLR 127 (SC).

[6] In re Milling (Deceased) (No 1) [1916] NZLR 1174 (SC).

[7] Marshall v Singleton [2020] NZCA 450, [2020] NZFLR 556 at [65].

[8] Guardhouse v Blackburn (1866) LR 1 P&D 109, [1861-73] All ER Rep 680; Re Whyte (deceased) [1969] NZLR 519 (SC) at 520; and Hastilow v Stobie (1865) LR 1 P&D 64.

[9] Mumby v Mumby [2016] NZHC 1284.

[10] Barry v Butlin (1838) 2 Moo PC 480, 12 ER 1090 (PC).

[11] Estate of Fuld (deceased) (No 3), Hartley v Fuld [1966] 2 WLR 717 (QB) at 781.

[12] See Drummond v Davidson [2016] NZHC 1888, citing Tanner v Public Trustee [1973] 1 NZLR 68 (CA) at 74, Petrovski v Nasev; The Estate of Janakievsta [2011] NSWSC 1275 at [259].

[13] Wintle v Nye [1959] 1 WLR 284 (HL) at 291.

[14] See for example: Craig v Lamoureux [1920] AC 349 (PC); Ramcoomarsingh v Administrator General Trinidad v Tobago [2002] UKPC 67; and Harris v Taylor [2015] NZHC 3190, [2016] NZAR 363 at [129]–[137].

[15] Puru v Puru HC Auckland CIV-2007-404-3881, 5 November 2008 at [93].

[16] Guardhouse v Blackburn, above n X. See too Atter v Atkinson (1869) LR 1 P & D 665; Barry v Butlin, above n X; and Fulton v Andrew (1875) LR 7 HL 448.

[17] Barry v Butlin, above n X; Fulton v Andrew, above n X; Tyrell v Painton [1894] All ER Rep 1120 (CA); McDonald v Valentine [1920] NZLR 270 (SC); Howie v Chatterton [1926] NZLR 595 (CA); Tanner v Public Trustee, above n X; Rameke v Wikatene (2008) 27 FRNZ 149 (HC); Perrins v Holland [2010] EWCA Civ 840, [2010] WTLR 1415; Drummond v Davidson, above n X; and Mumby v Mumby, above n X.

[18] Sections 6 and 8.

[19] Re Cook’s Estate [1960] 1 All ER 689.

[20] Re Colling [1972] 3 All ER 729.

[21] Hudson v Parker (1844) 1 Rob Ecc 14 (KB).

[22] Singleton v Marshall [2019] NZHC 2486.

[23] Public Trust v Fairbairn [2023] NZHC 2605.

[24] Balchin v Hall [2016] NZHC 837 at [11]; Dickens v Fraser [2020] NZHC 2448 at [23]; and Re Ruth [2023] NZHC 276 at [12].

[25] Banks v Goodfellow (1870) LR 5 QB 549 at 565.

[26] Loosley v Powell [2018] NZCA 3, [2018] 2 NZLR 618 at [19].

[27] Many of these statements are taken from the Court of Appeal judgments of Woodward v Smith [2009] NZCA 215 and Loosley v Powell, above n X.

[28] Woodward v Smith, above n X, at [19].

[29] Woodward v Smith HC Napier CIV-2004-441-706, 8 February 2008 at [103]; and Peters v Morris CA 99/85, 19 May 1987.

[30] Loosley v Powell, above n X, at [3]–[5], citing Bishop v O’Dea (1999) 18 FRNZ 492 (CA). See too Brown v Pourau [1995] 1 NZLR 352; Re W (Enduring Power of Attorney) [2001] Ch 609; and Tanner v Public Trustee, above n X.

[31] Loosley v Powell, above n X, at [21], citing Nijsse v Squires CA53/04, 15 December 2004 at [12].

[32] Grbavac v Vujcich [2020] NZHC 1953 at [16].

[33] Loosley v Powell, above n X, at [35].

[34] Re Young [1968] NZLR 1178 (SC) at 1179.

[35] See Public Trust v Lawrence [2022] NZHC 558, citing In the goods of Watts (1837) 1 CURT 594, 163 ER 208 at 208 and Endean v Endean [2020] NZHC 2575 at [7]. See too Rakich v Cox [2015] NZHC 703 at [10]; and Re Young [1968] NZLR 1178 (SC) at 1179.

[36] Re Watson [2014] NZHC 874 at [10].

[37] Grbavac v Vujcich, above n X, at [20].

[38] Parker v Felgate (1883) 8 PD 171.

[39] Tansley v Trustees Executors and Agency Co of New Zealand HC Wellington CP698/92, 17 March 1994 at 5.

[40] Woodward v Smith, above n X, at [57], referring to Jacoby and Steer “How to assess capacity to make a will” (2007) 335 BMJ 155.

[41] Re Gibson [2021] NZHC 3256.

[42] Ball v Saint [2023] NZHC 814.

[43] Public Trust v White [2023] NZHC 1608.

[44] Public Trust v Niemann [2024] NZHC 934.

[45] Sefton v Hopwood (1855) 1 F&F 578 NP, 175 ER 860. See too Hall v Hall (1868) LR 1 P&D 481; and In re O’Brien [1932] NZLR 43.

[46] Hall v Hall, above n X, at 482.

[47] Wingrove v Wingrove (1885) 11 PD 81 at 82; and Re Trevarthen (Deceased) HC Auckland CIV-2007-404-3881, 5 November 2008 at [93].

[48] Union Bank of Australia Limited v Whitelaw [1906] VLR 711 at 720.

[49] Contractors Bonding Limited v Snee [1992] 2 NZLR 157 (CA).

[50] R v Attorney-General for England and Wales [2004] 2 NZLR 577 (PC) at [17].

[51] Hubbard v Scott [2011] EWHC 2750 (Ch) at [45].

[52] Green v Green [2016] NZCA 486, [2017] 2 NZLR 321.

[53] At [1].

[54] At [2].

[55] At [9(e)].

[56] At [35].

[57] At [75].

[58] Finney v Govett (1908) 25 TLR 186 (CA); Fulton v Andrew [1874–80] All ER Rep 1240; Tanner v Public Trustee, above n X; Wintle v Nye [1959] 1 All ER 552; and Harrison v Harrison HC Wellington CIV-2005-485-3673, 24 October 2007.

[59] (H W Fowler and F G Fowler (eds) The Concise Oxford Dictionary (4th ed, Oxford University Press, 1951) at 168–169).

[60] Black’s Law Dictionary (11th ed, Westlaw, Online ed).

[61] Halsbury’s Law of England Wills and Intestacy (Vol 102 (2021)) at 58.

[62] Rea v Rea [2019] EWHC 2434 (Ch) at [73]; and Reeves v Drew [2022] EWHC 159.

[63] See generally Royal Bank of Scotland plc v Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773; Attorney-General for England and Wales v R [2003] UKPC 22, [2004] 2 NZLR 577; and Hogan v Commercial Factors Ltd [2006] 3 NZLR 618 (CA).

[64] Halsbury’s Law of England, above n X, at 58.

[65] Butterfield v Scawen (1775).

[66] Re Edwards [2007] EWHC 1119 (Ch), [2007] WTLR 1387 at [47], cited in Alexander Learmonth, Charlotte Ford, Julia Clark and John Martyn (eds) Williams, Mortimer & Sunnucks, Executors, Administrators and Probate (21st ed, Sweet & Maxwell, London, 2018) at [10-56].

[67] See St Clair v King [2022] EWHC 40 (Ch) at [144]; and In Re Hayward, Kunicki v Hayward [2016] EWHC 3199 (Ch), [2017] 4 WLR 32 at [120], discussing Re Edwards, above n X.

[68] Boyse v Rossborough (1856) 6 HL Cas 2. See also Parfitt v Lawless (1872) LR 2 P&D 462; and Allen v McPherson (1847) 1 HL Cas 191.

[69] At 44.

[70] At 45.

[71] In re Hayward, above n X, at [122].

[72] Christodoulides v Marcou [2017] EWHC 2632 (Ch) at [59].

[73] At [56].

[74] Rea v Rea [2019] EWHC 2434 (Ch) at [74]).

[75] Rea v Rea [2021] EWHC 893 (Ch).

[76] Whittle v Whittle [2022] EWHC 925 (Ch).

[77] St Clair v King, above n X.

[78] In re Garnett (1885) 31 Ch.D. 1 (CA) at 8.

[79] See Thomas v Times Book Co [1966] 1 WLR 911 (Ch) at 915–916.

[80] Birmingham v Renfrew (1937) 57 CLR 666 (HCA) at 674–675.

[81] Nesbitt v Nicholson (Re Boyes) [2013] EWHC 4027 (Ch) at [137].

[82] Watson v Foxman (1995) 49 NSWLR 315 at 318–319.

[83] Street v Fountaine [2018] NZCA 55 at [128].

[84] Glenn v Watson [2018] EWHC 2016 (Ch) at [58].

Clive Antony