Maria Shaw (plaintiff) propounded a will dated 18 October 2019 (“2019 Will”) of her deceased father, Martin Tullemans. The 2019 Will was handwritten by Maria’s son David and left the residue of Martin’s estate to Maria. Tamar Tane (defendant), daughter of Martin’s former partner, disputed the 2019 Will and propounded an earlier will dated 6 May 2013 (“2013 Will”) leaving the estate to her and siblings. The court found the evidence of the witnesses to the 2019 Will was unreliable and suspicious circumstances surrounded its preparation. In particular, the court was not satisfied Martin signed the 2019 Will or intended it to be his will. The signatures were also suspicious. Maria failed to discharge the onus to prove the 2019 Will was properly executed or that Martin intended it to be his will. The court pronounced against the 2019 Will and in favour of the 2013 Will, finding Maria had not proven the 2019 Will was Martin’s last true will. The court granted probate in solemn form of the 2013 Will to Tamar Tane as executor.
https://www.queenslandjudgments.com.au/caselaw/qsc/2022/301
A suspicious circumstance surrounding a will may bring into question any element required for a will to be declared valid including whether it was duly executed, whether the deceased had capacity to make the will, the deceased’s testamentary intention and the deceased’s knowledge and approval of the content of the will. Where the question of testamentary capacity was in issue, the High Court used similar language, speaking of a circumstance that “excites the vigilance of the Court”[21] and the Supreme Court of Canada has adopted a wide field of operation of suspicious circumstances.[22] Barry v Butlin, the case often cited for the suspicious circumstances principles, does not limit the relevant judicial satisfaction to the deceased’s knowledge and approval of the will’s contents. It requires judicial satisfaction that the grounds of suspicion have been satisfactorily removed so that the paper propounded expresses the true will of the deceased.[23]
[21]Bailey v Bailey (1924) 34 CLR 558, 560.
[22]Vout v Hay [1995] 2 SCR 876, 889.
[23]Barry v Butlin (1838) 2 Moo PC 480, 482-483 and 488.