2. Witnessing wills and undue influence

Introduction

  1. 2.1 The Commission has been asked to review and report on ‘whether the current requirements for witnessing wills should be revised to better protect older and vulnerable will-makers from undue influence by potential beneficiaries or others’.
  2. 2.2 The Commission’s consultation paper on wills set out various ways in which the requirements for witnessing a will could be changed in order to protect vulnerable will-makers from undue influence. However, although widespread concern was expressed in submissions and consultations about potential beneficiaries improperly prevailing upon vulnerable will-makers to make wills that do not reflect their wishes, there was little support for the view that changing the witnessing requirements would deal with this problem.
  3. 2.3 The Commission has concluded that no changes to the witnessing requirements for wills are necessary. This is because changing the witnessing requirements is unlikely to prevent undue influence, and some changes may have other negative consequences. Instead, the Commission sees a need to give legal practitioners more guidance on detecting and preventing undue influence when preparing a will, and to monitor the application of the doctrine of undue influence to probate matters in Canada.
  4. 2.4 The next section outlines the requirements for witnessing a will, the reform ideas canvassed in the consultation paper, comments made about those ideas, and the Commission’s conclusions in relation to each possible change.

Requirements for witnessing a will

  1. 2.5 In order to make a valid will, the document must be in writing and signed by the will-maker in the presence of two witnesses. Both witnesses must witness the will-maker signing the will, in each other’s presence. They must then sign the will in the presence of the will-maker, but not necessarily in each other’s presence.1
  2. 2.6 The witness must be able to see the will-maker sign the document, but does not need to know that the document is a will.2 A witness can be any competent adult capable of sight, including a beneficiary under the will, and no particular qualifications are required.3
  3. 2.7 Even if the will-maker does not follow these formalities, the will may still be admitted to probate where the Supreme Court is satisfied that the person ‘intended the document
    to be his or her will’.4 This is referred to as a dispensing power, as the Court may dispense with the formal requirements which otherwise apply in the making of a will.
  4. 2.8 Witnessing requirements in Victorian law are consistent with the National Committee for Uniform Succession Law’s recommendations,5 as well as the requirements in other states and territories.6 The requirements in all Australian jurisdictions have been relaxed in recent years to make it easier for people to make a valid will.7

Additional qualifications or requirements for witnesses

  1. 2.9 In the consultation paper on wills, the Commission raised various ways that witnessing requirements could be made stricter in order to prevent undue influence, including:
  • requiring one of the witnesses to be a person who is authorised to witness a statutory declaration
  • requiring the witness to certify that the will-maker signed the will freely and voluntarily and appeared to have the mental capacity necessary to make a will
  • requiring one of the witnesses to be a medical practitioner who provides an assessment of the will-maker’s capacity and freedom of will
  • requiring the witness to be aware that they are signing a will.8
  1. 2.10 The comments received about each of these proposals are detailed below. In general, they conveyed the view that none of these potential changes would be effective in preventing undue influence.9 In addition to this key concern, submissions identified other negative consequences of changing the witnessing requirements:
  • It would undermine national consistency in one of the few areas where laws are currently consistent.10
  • It would, subject to any application of the dispensing power, lead to an increasing number of wills being found invalid and the will-maker’s intentions therefore not being upheld.11
  • It may increase the cost of making a will or make it more difficult to make a will without the assistance of a legal practitioner.12
  • It would undermine the important civil right to make a will.13
  1. 2.11 Comments were also sought on whether special witnessing requirements should be introduced only for will-makers over a certain age. The majority did not support the idea.14 Most felt it would be arbitrary and discriminatory, as well as ineffective in preventing undue influence.15
  2. 2.12 In balancing the risk of abuse with the ability of persons to make their own will easily, most felt that the law should facilitate will-making rather than add additional obstacles to the process.16
  3. 2.13 Some submissions supported introducing witnessing requirements that are similar to those for executing a power of attorney.17 However, others noted that this is a fundamentally different type of document, where the person appointed usually has power over all of the donor’s assets while the donor is alive.18
  4. 2.14 The Commission is of the view that none of these possible changes to the witnessing requirements should be made. Apart from the reasons outlined above, any change to the witnessing requirements could be ineffective because the Court may exercise its power to dispense with the formal requirements which otherwise apply in the making of a will. A will without any witnesses could still be upheld by a court exercising the dispensing power, and a will that did not meet any new witnessing requirement could also be upheld under this power.

Requiring that one of the witnesses be authorised to witness a statutory declaration or affidavit

  1. 2.15 Currently in Victoria, an enduring power of attorney must be witnessed by two adults, one of whom is authorised to witness a statutory declaration.19 This includes lawyers, police, medical practitioners, dentists, pharmacists, bank managers, accountants and school principals.20 The Victorian Parliament Law Reform Committee recommended in its 2010 report on powers of attorney that the witnessing requirements should be strengthened and that one of the two witnesses should instead be either a person who is authorised to witness an affidavit or a medical practitioner.21
  2. 2.16 Drawing on the current and proposed requirements for witnessing an enduring power of attorney, the consultation paper put forward the idea that one of the witnesses to a will should be a person who is authorised to witness a statutory declaration or an affidavit. Rigby Cooke Lawyers and Seniors Rights Victoria supported the idea.22 In particular, Rigby Cooke Lawyers pointed out that it would be consistent with the requirement for executing an international will.23
  3. 2.17 However, others did not believe it would make any difference in the incidence of undue influence.24 Moores Legal noted that:

unless the will-maker is well known to the witness or the witness is instructed to make an assessment of the situation, the reality is that the witness is likely to simply sign the document without any detailed assessment.25

  1. 2.18 The Commission agrees that requiring a professional witness to sign the will is unlikely to bring about the detection or prevention of undue influence. Assessing whether the will-maker has the necessary capacity and is signing the will freely and voluntarily is a complex task, and it is unlikely that this change would assist. In addition, this change would make it more difficult to have a will validly executed, particularly where the will is prepared without the assistance of a legal practitioner.

Requiring the witness to certify that the will-maker appeared to have capacity and signed freely and voluntarily

  1. 2.19 The Commission’s consultation paper on wills raised the possibility of requiring a witness to a will to certify that the will-maker had the necessary mental capacity to sign their will, and signed the will freely and voluntarily.
  2. 2.20 This is another proposal based on a requirement that applies when witnessing an enduring power of attorney. Each witness to an enduring power of attorney must certify that the donor signed the document freely and voluntarily and appeared to have the capacity necessary to make the enduring power of attorney.26
  3. 2.21 While some submissions supported the idea,27 others noted that this is a complicated task and would be beyond the experience of many witnesses.28 Some questioned the value that a court would place on such an assessment provided by a person without expertise in issues of capacity and coercion.29
  4. 2.22 The Law Institute of Victoria noted that there is still confusion among legal practitioners about the level of capacity required, although the culture and practice surrounding witnessing powers of attorney has reportedly improved since witnesses have been required to certify capacity.30 It is therefore difficult for any non-legal or non-medical witness to certify that the person appeared to have capacity.31
  5. 2.23 The Commission does not believe that such a change to the requirements for witnessing wills would be useful in preventing undue influence. Where a will-maker’s capacity is in doubt, a professional report would be more useful to the Court on a subsequent challenge to the will than the view of an unqualified lay witness.

Requiring a medical practitioner to witness and assess the person’s capacity

  1. 2.24 Most submissions opposed the idea of requiring one of the witnesses to the will to be a medical practitioner who would provide an assessment of the will-maker’s capacity and freedom of will.32 Some noted that this would impose an unreasonable burden on medical practitioners for little benefit.33 In addition, issues of coercion and voluntariness are not necessarily medical issues and may require further investigation where undue influence is suspected.34
  2. 2.25 The view was also put that a specialist report on capacity at the time the will is made is more useful than having a medical practitioner witness it being signed.35 Legal practitioners already consider it good practice to obtain such a report where a client’s capacity is in doubt.36
  3. 2.26 The Commission agrees that requiring a medical practitioner to witness a will would be ineffective in preventing undue influence. It would also place an unreasonable burden on medical practitioners and would make the process of executing a valid will more difficult. Further, it would be unnecessary to apply such a measure to all will-makers, as capacity is not in issue for most will-makers, but applying the measure only to certain categories of will-maker would require arbitrary distinctions to be made (by age or whether the will-maker is in hospital, for example). Such distinctions would risk being discriminatory and not targeting the problem of undue influence. The Commission therefore does not support such a change.

Requiring the witness to be aware that the document is a will

  1. 2.27 Section 8 of the Wills Act states that a witness need not be aware that the document they are signing is a will. In the consultation paper on wills the Commission asked whether this section should be amended to provide that a witness must always be aware they are witnessing a will.37
  2. 2.28 Views expressed in submissions were mixed. While some were in favour of such a change,38 others were not and highlighted disadvantages.39 In particular, Moores Legal noted that, under the current law, the role of the witness is to attest that the document was executed in their presence, not that the document is valid.40 In addition, most witnesses would already be aware that they are witnessing a will.41 Requiring witnesses to be aware that a will is being executed would not make a difference to the possibility of a will-maker being subject to undue influence.42 It would also be inconsistent with provisions in other states and territories.43
  3. 2.29 The Commission agrees that amending section 8 of the Wills Act, to require witnesses to know they are witnessing a will, would not provide will-makers with greater protection from undue influence. In addition, most other states and territories have a similar provision,44 so an amendment of this nature would undermine national consistency.

The witness-beneficiary rule

Current law

  1. 2.30 The witness-beneficiary rule, also called the interested witness rule,45 was abolished in Victoria in 1997.46
  2. 2.31 It originated in 1752 in England, as part of the general evidentiary principle that an interested witness is not a credible witness.47 While the rules of evidence later changed to enable an interested witness to give evidence, the witness-beneficiary rule survived in succession law. The justification for the rule then became the avoidance of undue influence.48
  3. 2.32 In Victoria, the rule originally prevented a witness or their spouse from taking a benefit under a will they had witnessed.49 In 1977, certain exceptions to the rule were introduced,50 but the rule was ultimately abolished in Victoria by the Wills Act 1997 (Vic) on the recommendation of the Victorian Parliament Law Reform Committee.51
  4. 2.33 The Committee criticised the effect of the rule and concluded that anyone objecting to a benefit given to a witness to the will could challenge the will on the basis that the will-maker acted under undue influence, or that they lacked knowledge of, or did not approve, the contents of the will.52
  5. 2.34 Despite the abolition of the rule in 1997, Victorian legal practitioners still consider it good practice not to use a beneficiary as a witness to a will, to avoid any suggestion
    of impropriety.53

National Committee for Uniform Succession Laws

  1. 2.35 At the time that the National Committee for Uniform Succession Laws considered the witness-beneficiary rule, two Australian jurisdictions had abolished the rule54 and most others had a modified version of the rule that allowed for some exceptions.55
  2. 2.36 While the National Committee acknowledged some disadvantages of the rule, it recommended retaining it in a modified form that allowed for some exceptions.56
    It recommended that a gift to a witness should not fail in any of the following cases:
  • at least two of the witnesses are not beneficiaries
  • everyone who would benefit from the failed gift consents in writing to the gift not failing
  • the court is satisfied that the will-maker knew and approved of the gift and that it was made freely and voluntarily by the will-maker.57

Other jurisdictions

  1. 2.37 South Australia, Western Australia and the Australian Capital Territory have also abolished the witness-beneficiary rule, bringing the number of jurisdictions to have done so to four.58
  2. 2.38 In the other four Australian jurisdictions, the rule exists in the form recommended by the National Committee for Uniform Succession Laws.59 In a number of cases in those jurisdictions, a witness-beneficiary has been able to keep a gift under a will where they have been able to demonstrate that the will-maker knew and approved of the gift and that it was made freely and voluntarily.60

Views and conclusions

  1. 2.39 The Commission’s consultation paper on wills asked whether the witness-beneficiary rule should be reintroduced in Victoria in the form recommended by the National Committee for Uniform Succession Laws.
  2. 2.40 The Commission received mixed views on the desirability of this change.61 The following reasons were given in favour of reintroduction:
  • Reintroducing the rule could minimise the risk of undue influence.62
  • Smaller estates cannot bear the cost of a challenge to a will based on suspicious circumstances or undue influence.63
  • Other legal documents require independent witnesses, in particular powers of attorney.64
  • Reintroducing the rule would promote national consistency.65
  • There would be more opportunity for independent scrutiny of a will where there are two independent witnesses.66
  • Due to the exceptions to the rule, where a witness is properly left a gift it will survive either by consent of the other beneficiaries or by court order.67
  1. 2.41 Others opposed the reintroduction of the rule in any form in Victoria.68 They noted that:
  • The person trying to persuade the will-maker to make their will in a particular way
    is more likely than a witness to subject the will-maker to undue influence.69
  • The rule can produce injustice in innocent situations70 and may interfere with the freedom to make a will, defeating the will-maker’s wishes where there is no real issue of impropriety.71
  • The rule may result in increased litigation to determine whether an exception applies.72
  • Reintroduction of the rule would not advance national consistency, as the rule does not apply in four jurisdictions.73
  • The existence of a witness-beneficiary may provide some evidence of suspicious circumstances or undue influence, so a will could still be challenged by these other means.74
  1. 2.42 The Commission agrees that there are compelling arguments against reintroducing the witness-beneficiary rule. In particular, the Commission does not believe that the rule is an effective measure to prevent or remedy undue influence. Most of those seeking to exercise undue influence take steps to disguise their involvement in the will-making process, including by refraining from acting as a witness to the will.75 There were no witness-beneficiaries in any of the recent cases where the Court found undue influence.76 Even if the rule could prevent undue influence, it would constitute a blunt instrument for the protection of vulnerable will-makers, given that it would apply to all wills under which a witness receives a benefit.
  2. 2.43 Further, the rule particularly disadvantages people who make a will themselves (a home-made will) without the assistance of a legal practitioner.77 In the Commission’s view, the will-making process should not be made significantly more difficult, and people should have the choice to make their wills at home without the assistance of a legal practitioner. The Commission agrees that the rule has the potential to undermine the will-maker’s intentions, particularly where the witness-beneficiary has insufficient funds to bring a court case arguing that an exception applies.
  3. 2.44 Therefore, the Commission does not recommend reintroduction of the witness-beneficiary rule. In the Commission’s view, changes that focus on preventing undue influence, and possibly also redefining the existing doctrine of undue influence, would be more effective in protecting older and vulnerable will-makers from undue influence.

Prevention of undue influence through other changes to the will-making process

  1. 2.45 The formalities for making a valid will, including the witnessing requirements discussed above, are intended to reduce the risk of undue influence and fraud when a will is being made. However, increasing concern that older and vulnerable will-makers are being subjected to pressure about their wills has led some judges and commentators to suggest other ways of reducing the risk of undue influence in the will-making process.78 The key suggestion in this area of prevention is to ensure that legal practitioners take greater care when making wills.
  2. 2.46 In Victoria, legal practitioners must comply with professional conduct and practice rules. Rule 10 of the Professional Conduct and Practice Rules is the only rule that specifically applies to the drafting of a will. The rule only deals with legal practitioners who receive a benefit under a will (for example, an entitlement to professional remuneration where the legal practitioner is appointed as executor) and does not impose any other obligations on legal practitioners drafting wills.79
  3. 2.47 In the consultation paper on wills, the Commission raised various ways that the rules for legal practitioners drafting wills could be strengthened. This section outlines the views of those consulted by the Commission and the Commission’s recommendations to improve the will-drafting process in order to reduce the risk of undue influence.

Requirement to obtain a medical capacity assessment

  1. 2.48 In the consultation paper on wills, the Commission asked whether a legal practitioner who is asked to draft a will by a client should be required to obtain a medical assessment of the client’s capacity in particular circumstances.
  2. 2.49 Some of the responses suggested that this would be a useful change, for example where the will-maker is over a particular age (80 or 85)80 or where the will-maker has another known vulnerability such as being in a medical facility or taking medication that affects decision-making.81
  3. 2.50 Others put the view that this additional requirement would unnecessarily complicate the process of getting a will made by a legal practitioner.82 It may make it more likely that a person makes a home-made will without the scrutiny of a legal practitioner.83 It also undermines the presumption that people have capacity and may act as a disincentive to having a will made at all.84 Some also questioned whether medical practitioners would be prepared to undertake this work and what the costs associated with the report would be.85
  4. 2.51 The observation was also made that a capacity assessment is not likely to detect undue influence, which can occur where a will-maker clearly has testamentary capacity.86 Susceptibility to undue influence is not necessarily a medical issue.87 Further, the requirement would provide no protection to will-makers who do not consult a legal practitioner.88
  5. 2.52 Submissions recognised that Victorian legal practitioners already consider it good practice to obtain a medical capacity assessment where a client’s capacity is in doubt.89 The Commission agrees, and notes that the Law Institute of Victoria is preparing guidelines that will assist legal practitioners in deciding what to do in these circumstances. The Commission therefore does not recommend introducing an additional requirement that a medical assessment of capacity be obtained for all will-makers in a particular category.

Guidelines on minimising undue influence

  1. 2.53 The Commission also sought comments on whether guidelines for legal practitioners on minimising the risk of undue influence would be useful.
  2. 2.54 There is general support for the idea.90 Submissions made many suggestions about what professional guidelines on undue influence should contain, including:
  • the importance of taking instructions from the will-maker alone91
  • common characteristics of how a person subject to undue influence may present92
  • common warning signs of undue influence, for example a sudden change in beneficiary from close family member to recent acquaintance93
  • the role of interpreters who accompany the will-maker94
  • the importance of making enquiries about previous wills, and possibly obtaining previous wills95
  • the need to take and retain detailed file notes in the event that a will is challenged.96
  1. 2.55 Submissions also highlighted the need for further education and training of legal practitioners in this area.97
  2. 2.56 Although the Law Institute of Victoria is preparing guidelines for legal practitioners on assessing a client’s capacity when it is in doubt,98 they will not specifically deal with undue influence.
  3. 2.57 The Commission therefore recommends that the Law Institute of Victoria prepare best practice guidelines for legal practitioners that are designed to reduce the risk of undue influence. These guidelines would be in addition to the forthcoming guidelines on capacity and should cover,among other things:
  • the importance of taking detailed instructions from the will-maker alone
  • common risk factors associated with undue influence
  • the need to keep detailed file notes and make enquiries regarding previous wills.
  1. 2.58 In preparing the guidelines on undue influence, the Law Institute of Victoria will be able to draw from existing guides and resources that document best practice when taking instructions for a will.99

Recommendation

1 The Law Institute of Victoria should prepare best practice guidelines for legal practitioners on the detection and prevention of undue influence when preparing a will. These guidelines should cover such matters as:

Doctrine of undue influence

  1. 2.59 According to the doctrine of undue influence that applies in probate proceedings, undue influence involves the imposition of pressure on a person that causes them to make a will that does not reflect their true wishes. In the consultation paper on wills, the Commission asked whether this common law doctrine (‘probate undue influence’) should be changed.
  2. 2.60 The main problem with probate undue influence is that it has been too difficult to prove.100 This may lead to the Court upholding a will that does not in fact reflect the will-maker’s true intentions.101 This is particularly concerning given the ageing population and increasing vulnerability of older people making wills. As the population ages, there may be an increasing number of people who, despite having testamentary capacity, are vulnerable to pressure from relatives, caregivers and others.102
  3. 2.61 Undue influence is defined differently in equity103 and is not as difficult to prove. This section outlines the legal definition of undue influence in both probate and equity, the law in other jurisdictions and the views of those consulted by the Commission on Victoria’s undue influence law. It also outlines the Commission’s views on making it easier for a person to challenge a will based on undue influence.

Probate undue influence

  1. 2.62 In Victoria, a will or part of a will may be invalid because of undue influence. The doctrine of undue influence is part of the common law and is not referred to in legislation. Traditionally, undue influence has been considered difficult to prove104 and ‘virtually a dead letter’ in probate law.105 Until the Victorian case of Nicholson v Knaggs in 2009, there had been only three successful cases of undue influence in relation to wills in Australia—all in the 1800s.106 Since the decision in Nicholson v Knaggs there have been three further successful cases of undue influence in Australia107 and one in the United Kingdom.108
  2. 2.63 Undue influence as a legal concept is distinct from want of testamentary capacity and want of knowledge and approval, although the party challenging a will often raises these issues together.109 A will-maker must have testamentary capacity in order to be subject to undue influence. If the will-maker does not have testamentary capacity then the will is invalid in any event.

Definition of undue influence

  1. 2.64 Traditionally, a party seeking to prove probate undue influence needs to demonstrate that coercion occurred.110 The influencer must have overborne the free will of the will-maker so that the will-maker was coerced into doing something they did not wish to do.111 Power to control the will-maker is not enough to establish coercion.112 This led some to observe that the law permitted or even encouraged some form of manipulative conduct by potential beneficiaries.113
  2. 2.65 In Nicholson v Knaggs, Justice Vickery defined ‘undue influence’ by emphasising that:

The key concept is that of ‘influence’. The influence moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the free, independent and voluntary will of the [will-maker]. It is the effect rather than the means which is the focus of the principle.114

Standard of proof

  1. 2.66 The traditional position has been that, where there is only circumstantial evidence, undue influence must be the only explanation for the existence of the will.115 In Nicholson v Knaggs, Justice Vickery noted that this standard is much higher than the usual civil standard of proof. He held that the correct test is:
  • Where there is direct evidence: whether, on the balance of probabilities, the will of the will-maker was overborne to the requisite degree by conduct proven by the direct evidence.
  • Where there is circumstantial evidence: whether the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence has been evaluated as a whole.116
  1. 2.67 Following Nicholson v Knaggs, probate undue influence may now be easier to prove in Victoria.117

Burden of proof

  1. 2.68 The burden of proof is on the person alleging undue influence.118 This is in contrast to want of knowledge and approval, where the burden of proof is on the person seeking to uphold the will. It is also in contrast to equitable undue influence for lifetime transactions, where the burden of proof is on the person seeking to retain the gift.

Equitable undue influence

  1. 2.69 While sharing a common title, the doctrines of undue influence in equity and undue influence in probate are based on different principles. The equitable doctrine of undue influence applies to transactions that occur during a person’s lifetime. A common suggestion for reform is that this equitable doctrine should also apply to wills.119
    This section outlines the equitable doctrine of undue influence.

Definition of undue influence

  1. 2.70 The equitable doctrine of undue influence allows a lifetime gift or transaction to be set aside where a person is in a position of influence over the donor, unless the person who benefits can satisfy the Court that no undue influence was used.
  2. 2.71 A position of influence includes:
  • Categories of presumed influence of one person over the other. These include parent and minor child, doctor and patient, legal practitioner and client.120
  • A relationship that is proved to be one of ascendancy, power or domination on the one hand, and dependence or subjection on the other.121
  1. 2.72 There is no need for the weaker party to show any wrongful act or threat or even that the stronger party did in fact dominate the weaker party.122

Burden of proof

  1. 2.73 Where the weaker party has established that there is a relationship of influence, it will be presumed that undue influence was applied by the stronger party. The stronger party must then satisfy the Court that the transaction was the free and independent act of a person exercising judgment, in order to rebut the presumption of undue influence.123 Evidence that the person received independent advice is one way of proving this.124
  2. 2.74 Undue influence may be presumed even where the weaker party is eager for the transaction to occur.125

Adoption of equitable undue influence in probate in British Columbia

  1. 2.75 To overcome the inflexibility of probate undue influence, the Canadian province of British Columbia has passed legislation that will introduce the equitable doctrine of undue influence into the probate context.126 The new legislation will come into force in 2014127 and provides that:

52 In an action, if a person claims that a will or any provision of it resulted from another person

(a) being in a position where the potential for dependence or domination of the will-maker was present, and

(b) using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,

and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.128

Views and conclusions

  1. 2.76 Views expressed in submissions and consultations were divided on the question of whether the equitable doctrine of undue influence should be applied in probate. Some saw advantages in such a change, while others were concerned that the equitable doctrine is not appropriate to the probate context.
  2. 2.77 Those who opposed the idea drew attention to the different contexts in which a person gives a gift during their lifetime and makes a will that leaves a gift after they die:
  • A presumption of influence is less relevant to a gift in a will, as a person must leave their property to someone at the end of their life. In contrast, there is usually no clear benefit or reason to give away assets during a person’s lifetime where the person may be left in need as a result.129
  • Beneficiaries will often legitimately have influence over a will-maker, particularly if they are caring for them in the last years of their life. A presumption of undue influence arising out of these relationships may disturb legitimate gifts and interfere with testamentary freedom.130
  • In the case of a lifetime transaction, the weaker party can usually speak for themselves regarding the pressure that was placed on them to enter into a transaction. The will-maker will not be able to provide evidence of their intention or motivation by way of rebuttal of the presumption.131
  • The equitable doctrine does not focus on improper influence, but looks instead to the conscience of the stronger party. A carer may exercise influence over the will-maker to have a will made but not to have the will include particular provisions. This is not improper but may raise a presumption of undue influence in equity.132
  • Recent decisions suggest that probate undue influence is no longer so difficult to prove and that the common law is already providing better protection for vulnerable will-makers.133
  1. 2.78 Others noted that there would be advantages in applying the equitable doctrine to probate:
  • It would allow for greater scrutiny of wills and may deter undue influence, as it would be easier to prove.134
  • It would encourage the use of independent advisors in the making of wills.135
  • It would promote consistency in the law, particularly where property is given away close to death.136
  • It would align with the separate but associated doctrine of unconscionable dealing, which arguably applies in the probate context.137

  1. 2.79 Moores Legal proposed that an exception to any presumption of undue influence should apply where a will makes a ‘regular’ gift.138 For example, where a person divides their estate equally between multiple children, the person alleging undue influence would be required to prove probate undue influence.139
  2. 2.80 There was also some support for having the tests adopted by Justice Vickery in Nicholson v Knaggs included in legislation140 or for otherwise relaxing the probate doctrine.141
  3. 2.81 While the Commission can see some merit in passing legislation that makes undue influence easier to prove, either by giving statutory backing to the tests in Nicholson v Knaggs142 or by introducing the equitable doctrine into the probate context, it does not recommend legislative change at this time. As the recent developments in the common law probate doctrine appear to have made undue influence easier to prove, it is not necessary to enshrine it in legislation. Any statutory provision that applies equitable undue influence to probate matters would need to modify the doctrine in order to accommodate the context within which a will is made.
  4. 2.82 The British Columbia reform is groundbreaking and could signal a direction in the development of the law that Victoria, and other Australian jurisdictions, may want to follow. For this reason, the Commission considers that, after it has been in effect for four years, the Attorney-General should be advised about:
  • the effect that the new legislation is having on protecting will-makers against undue influence
  • whether, in view of the development of the common law doctrine in Australia as well as the operation of the British Columbia legislation, a similar provision should
    be adopted in Victoria.
  1. 2.83 The Commission expects that the Department of Justice would be in a position to prepare such advice.

Recommendation

2 Four years after the legislation comes into effect, the Attorney-General should cause a report to be prepared on:

Other common law rules related to undue influence

  1. 2.84 In the consultation paper on wills, the Commission outlined other claims that a person may raise concerning the will of an older or vulnerable will-maker. Apart from claiming undue influence, a person may raise a claim that:
  • the will-maker did not have testamentary capacity
  • the will-maker did not know and approve the contents of the will
  • the will was brought about by fraud or is a forgery.
  1. 2.85 The Commission asked whether changes to any of the relevant rules would assist in reducing the application of undue influence to older and vulnerable will-makers. There was generally little support for any changes to these rules. This section outlines the comments received and the Commission’s views on each rule.

Testamentary capacity

  1. 2.86 In order for a will to be valid, the will-maker must have had testamentary capacity at the time it was made. The test for testamentary capacity is a common law test, classically stated in the 1870 United Kingdom case of Banks v Goodfellow.143 A person must be of sound mind, memory and understanding to make a will. However, a will-maker is assumed to have been of sound mind unless evidence is presented that calls into question the person’s capacity. If such evidence is presented, then the person seeking to uphold the will must establish that the will-maker had capacity to make the will.
  2. 2.87 According to Banks v Goodfellow, in order to have the necessary soundness of mind the person must:
  • understand the nature and effect of a will
  • understand the nature and extent of their property
  • comprehend and appreciate the claims to which they ought to give effect
  • be suffering from no disorder of the mind or insane delusion that would result in an unwanted disposition.144
  1. 2.88 Submissions noted that medical practitioners do not always have a good understanding of this test when asked to provide an assessment of a person’s capacity.145 Submissions from two barristers supported further interdisciplinary training on the test for testamentary capacity.146
  2. 2.89 Some submissions noted that a statutory definition of testamentary capacity would be helpful to legal and medical practitioners.147 Others also supported the introduction of guidelines on assessing testamentary capacity.148 Most submissions that addressed this issue conveyed the view that no change to the current law is necessary or desirable.149
  3. 2.90 The Commission agrees that there is no need to change the common law test for testamentary capacity. The forthcoming guidelines by the Law Institute of Victoria on capacity assessment, as well as further interdisciplinary training in this area, will be useful in ensuring professionals understand the requirements for testamentary capacity.

Knowledge and approval and suspicious circumstances

  1. 2.91 In order for a will to be valid, it is necessary for the person seeking a grant of probate to establish that the will-maker had knowledge of and approved the contents of their will. Complying with the formal requirements for validity (for example, the witnessing requirements) and having proof of testamentary capacity is usually enough to establish knowledge and approval.150
  2. 2.92 However, where a suspicious circumstance exists, the person seeking to uphold the will must affirmatively prove that there was knowledge and approval of its contents. The onus of proof is on that person, not the person challenging the will.151
  3. 2.93 The courts have not limited what situations may constitute suspicious circumstances. Courts have held the following circumstances to be suspicious, thus requiring further investigation of ‘the righteousness of the transaction’, that is to say, of the validity of the will:
  • A beneficiary is involved in the will-making process, for example by witnessing the will,152 writing or preparing the will or taking the will-maker to a legal practitioner.153
  • The will-maker is ‘blind, illiterate or mentally or physically enfeebled’.154
  • The will was not read to or by the will-maker before it was executed.155
  • The will changes a pattern of previous wills by cutting out ‘natural’ beneficiaries and replacing them with recent acquaintances.156
  1. 2.94 Submissions that addressed this issue generally agreed that no changes are necessary
    to this area of the law.157 However, some noted that guidelines covering knowledge and approval would be useful for practitioners.158
  2. 2.95 The Commission agrees that no changes are necessary to this well settled area of the law. It would be useful for the Law Institute of Victoria to include discussion of knowledge and approval and suspicious circumstances in the recommended guidelines on undue influence.

Fraud and forgery

  1. 2.96 A less common basis for challenging a will is to claim that it was brought about by fraud or that it is a forgery. In the case of fraud, the person challenging the will must show that another person deceived or misled the will-maker.159 For example, a person may encourage the will-maker to take a false view of a potential beneficiary or mislead the will-maker as to the nature of their relationship with a person. Unlike undue influence, the will-maker’s will is not overborne; rather, the will-maker is deceived or misled.160
  2. 2.97 Where a person challenging a will raises the possibility that the will is a forgery, the Court must be satisfied that the document is not a forgery and was signed by the will-maker.161
  3. 2.98 Submissions that addressed this issue generally agreed that these areas of the law are well settled and do not require any change.162
  4. 2.99 The Commission agrees that no changes to these areas of law are necessary to provide better protection for older and vulnerable will-makers from undue influence.

Footnotes

Main menu

Back to top