Citation: Estate of the Late Lily Elizabeth Khalifeh [2011] NSWSC 388
Court: Supreme Court of New South Wales
Date: 11 April 2011
Judge(s): Ball J
Background
The deceased made a will on 29 October 2008, appointing two of her sons as executors. Under that will, she left her Lidcombe home to one daughter and divided the remainder of her estate among her eight other children.
Probate was initially granted in May 2010 but was subsequently revoked after another daughter lodged a caveat. In total, the defendant lodged three caveats, contending that the deceased either lacked testamentary capacity or had been subject to undue influence when she executed the 2008 will.
The plaintiff executors applied under the Supreme Court Rules for an order that the caveat cease to be in force. The defendant was represented, by leave of the court, by her older brother.
Legal Issues
- Whether the deceased had testamentary capacity at the time she made her will on 29 October 2008
- Whether the deceased was subject to undue influence or fraud when executing that will
- Whether the caveat lodged against the grant of probate should be set aside
Decision
On testamentary capacity: Ball J found no evidence to support the contention that the deceased lacked testamentary capacity. The defendant pointed to statements the deceased had made on other occasions about not understanding unrelated documents, and to minor discrepancies between the October 2008 will and an earlier July 2008 will. The court found neither line of argument persuasive.
The circumstances of execution weighed in favour of capacity. The deceased had attended the office of an independent solicitor at her own request, received legal advice, and had the will witnessed by that solicitor. Ball J reasoned that the solicitor would not have witnessed the will had there been any doubt about the deceased's capacity. Minor discrepancies, such as a misspelling of a beneficiary's name, did not constitute evidence of incapacity.
On undue influence and fraud: The court identified three separate problems with this aspect of the defendant's case. There was no direct evidence of undue influence or fraud, and no identification of who was said to have exerted such influence or how it was applied. The involvement of an independent solicitor who drew up and witnessed the will was inconsistent with a finding of undue influence. Finally, a handwritten document prepared by the deceased in August 2008, setting out her reasons for making the will as she did, directly contradicted the suggestion that she had been improperly pressured.
Orders Made
- The caveat against the grant of probate ceased to be in force
- The defendant was ordered to pay the plaintiffs' costs of the proceedings
Key Takeaways
- Testamentary capacity is assessed at the time the will is executed, not by reference to a testator's statements about other documents on other occasions
- The involvement of an independent solicitor in taking instructions, drafting, and witnessing a will carries significant weight against both testamentary incapacity and undue influence claims
- A successful undue influence challenge requires more than generalised suspicion: there must be identifiable evidence of who exerted pressure, how, and when, directed at the specific circumstances of execution
- A handwritten document by the deceased explaining the reasoning behind a will can serve as direct evidence rebutting allegations of undue influence
- Where a defendant lodges a caveat without sufficient evidentiary foundation to support the grounds alleged, a costs order against that defendant may follow
Legislation and Cases Referenced
Legislation:
- Supreme Court Rules, Part 78, Rule 69(1) and Rule 69(4)
Cases cited: None cited in the judgment text or metadata.