The validity of a Will can be challenged in many ways, one of which is by proving that suspicious circumstances were surrounding the drafting and execution of the Will.
This challenge was made in the recent case of Mekhail v Hana; Mekail v Hana  NSWCA 197.
In that case, the late Nadia Mekhail was found to have prepared two Wills, one in 2001 and another in 2014. The former will left $10,000 to two Coptic churches, and her residuary estate to her husband or if the husband predeceases her, to each of her five nephews in equal share. The latter Will left her whole estate to “her daughter Georgette Hana”, and appointed Georgette as the sole executrix.
Soon after the execution of the latter Will, two of Nadia’s nephews, Magdy and Youssef decided to challenge the later Will’s validity, alleging that it was drafted and executed under suspicious circumstances.
The suspicious circumstances included that:
- The Will was drafted on instructions from Georgette’s son rather than from Nadia herself;
- Given that Nadia was religious, it was suspicious that the Will did not leave anything to the church;
- There were unexplained variations to the instructions;
- Georgette’s son requested for two powers of attorney to be made for Nadia within a short period of time;
- There was a sense of urgency in the making of both the Will and the powers of attorney;
- A few weeks after the execution of the Will, Georgette purported to transfer Nadia’s only assets (a property in Strathfield) to herself for $1; and
- As revealed after the latter Will was made, Georgette was not Nadia’s daughter nor Nadia’s next to kin. In other words, Georgette and her son had lied to the solicitor about their relationship with Nadia, and the solicitor had erroneously believed in this lie.
Considering all the facts and the suspicious circumstances, the NSW Court of Appeal found that Georgette failed to provide evidence to eliminate all reasonable doubts. Hence, the Will was ultimately found to be invalid.
As the case above illustrates, the validity of Wills can be challenged. However, not everyone is entitled to do so.
Only people that have standing may challenge the will’s validity. This includes people who are affected by the will or by a previous will.
Furthermore, in addition to suspicious circumstances, pieces of evidence that suggest the testator lacked the capacity to make the Will or that the Will was made under duress could form a valid case against the validity of a Will.
A Will is a powerful legal instrument, but it is not immune to challenges, even after it has been executed. The case above is an example of an abusive use of legal instruments, but it is also an example of a possible avenue people of standing can take to rectify any unlawful action.
Therefore, should you suspect a Will to be invalid or created in any of the suspicious circumstances noted above, it is prudent to take action early by seeking legal advice.
Disclaimer: The information above is intended to be general information only and it should not be relied upon it as legal advice. If you seek professional advice please feel free to contact the team at Lincoln Legal or make an enquiry.
This article was made possible by Jonathan Wong