The Facts
Pre-war relationship reestablished decades later
Prior to World War II, the deceased was on intimate terms with a woman, V. When V married someone else, the deceased lost contact with her, until they met again in the early 1990s.
At the time of his death, the deceased was a bachelor whose closest living relative was his first cousin.
In January 1993, when the deceased’s health began to deteriorate, his cousin helped look after him, including visiting him for a month and cooking his meals.
No known will in existence at time of death of deceased
On 27 May 1993 the deceased went to stay with V. He passed away a few days later on 30 or 31 May.
After the deceased passed away, V began making funeral arrangements.
As far as the cousin knew, there was no known will in existence. She therefore stepped in and took over the funeral arrangements as the deceased’s next of kin.
She also obtained an order that V deliver up the deceased’s possessions.
Will made days before death of deceased
Then, in late August 1993, V’s solicitors notified the cousin that the deceased had in fact made a will. They enclosed a copy of the will and stated that they intended to apply for probate on V’s behalf.
The will was purportedly made on 27 May, just days before the deceased died. It was written down in pen on a single sheet of paper at the deceased’s request by V’s son, N.
It was signed by the deceased and was also signed by N and by V’s daughter, H, as witnesses.
The will appointed V as the deceased’s executor and left his estate, worth $730,000, to her as sole beneficiary.
Probate granted despite cousin’s objection to will as a forgery
V applied for probate of the will but died before it was granted.
H and V’s other son, B, acting as executors of V’s will, then applied for probate of the deceased’s will.
The deceased’s cousin objected to the grant of probate, arguing that the will was a forgery. However, the judge granted H and B’s application.
The cousin appealed to the Supreme Court of Victoria Court of Appeal.
Expert commentary on the court's decision
Court finds in favour of deceased’s cousin
In the case of McKinnon v Voigt & Smits [1998] 3 VR 543|BC9706054, the Supreme Court of Victoria Court of Appeal found in favour of the cousin, Norma McKinnon, in the dispute over the estate of the deceased, Ernest John Shelton.
The court set aside the grant of letters of administration the primary judge had made to Helen Smits (H) and Brian Voigt (B), the daughter and son of Dorothy Mary Voigt (V), who had been in a relationship with Mr Shelton prior to World War II.
In doing so, the court rejected the handwritten will due to the suspicious circumstances surrounding the drafting of it.
Principles of law to be applied in establishing validity of will
The court re-articulated the established principles of law as outlined by the primary judge.
First, the onus of proof is on the party asserting the validity of the will to satisfy the court that the document is the last will of a free and capable testator.
Secondly, where there are suspicious circumstances, it is up to the party asserting the validity of the will to remove that suspicion and to prove affirmatively that the deceased knew and approved of the contents of the document.
Thirdly, it is only after the suspicion is removed that the onus is thrown onto the person resisting the grant of probate to prove facts relied on to do so.
The court also confirmed that there is a greater onus upon those who take a benefit under a will, especially when they are directly instrumental in preparing the will. In particular, where a will drafter stands to benefit, he or she has a greater degree of suspicion to displace.
Onus on those asserting validity of will to remove any suspicion
Applying the above principles of law, the court said that Ms Smits and Mr Voigt, as the ones offering up the will as valid, bore the onus of dispelling any suspicious circumstances.
Until they satisfied that onus, Mrs McKinnon bore no onus to prove that the will had been forged.
The primary judge had nevertheless placed the onus on Mrs McKinnon to prove the forgery, prompting the appeals court to quip that “the judge in the present case appears to have recited relevant principles but to have stopped short of applying them”.
Beneficiaries of questionable will fail to dispel suspicious circumstances
The court was sceptical of Mr Voigt’s evidence and found the circumstances of the drafting of the will highly suspicious.
First, Mr Voigt had appointed himself and Ms Smits as the sole witnesses not just to the execution of the will, but also of the deceased’s knowledge and approval of the will’s contents.
The court found it strange that on Mr Voigt’s evidence, he had asked his mother to stay in the kitchen at a time when he had no knowledge that she would be named as the deceased’s primary beneficiary.
The neatness of the document was also suspicious to the court. As the court said:
The court also found it highly suspicious that Mr Voigt did not disclose the existence of the will for several months. Even when funeral arrangements were taken over by Mrs McKinnon and she sought an order to take possession of the deceased’s belongings, Mr Voigt did not mention the existence of the will.
This delay was not explained or justified by him.
Ultimately, the court concluded that “when a reckoning is made of the suspicions generated in this case… the reservations about the will are… overwhelming… [and] it became unnecessary to go into the question of whether forgery of the will had been proved.”
Will should be drafted by an independent expert
This case is a good reminder that it is so important to ensure your will is drafted by an expert.
It should not be done by a family member, it should not be done impromptu, and the person drafting the will should be independent of the persons benefiting from the will.
For more information on forgery and its legal implications, please see: “Yes, I forged his signature on property documents, but the house was rightfully mine.” Which case won?
For more on probate law, please see: “He’s a violent man and I don’t want him to know my home address.” Which case won?