Which case won?

The case for the deceased’s cousin
  • The creation of the handwritten document purporting to be my cousin’s will was surrounded by very suspicious circumstances.
  • My cousin’s signature on that document was a forgery. As the forensic document examiner who gave evidence on my behalf said, the signature was a simulation, and not even a good one.
  • My cousin was also gravely ill when the purported will was allegedly signed, dying just three or four days later. He would not have understood or approved of its contents.
  • The only individuals able to provide evidence of my cousin’s supposed wishes are V’s children, who now stand to benefit substantially if the alleged will is granted probate.
  • It is also quite suspicious that V and her children did not disclose the existence of the purported will for several months, despite me seeking an order that they deliver up my cousin’s possessions shortly after his death.
  • It is clear that the handwritten document is not my cousin’s true intended will and the court must set aside the grant of probate.
The case for V’s children
  • Contrary to what the deceased’s cousin says, the circumstances surrounding the making of the deceased’s will were not suspicious.
  • Our mother and the deceased had a long history together, dating back to before World War II. The deceased even indicated to N that he had asked our mother to marry him. Our mother is also the one who rushed the deceased to hospital for treatment before he died. So, it is not surprising that he chose to leave his estate to her. This is particularly so since the deceased told us that his cousin had stolen from him.
  • It is true that N assisted the deceased to write his will. However, this was only after telling the deceased repeatedly that he should use a solicitor. The deceased nevertheless insisted on the will being made then and there.
  • At the time he assisted the deceased, N was studying law, was a practising public accountant and was a former member of the Victorian police. He did not think that the deceased had any property of real value. Further, he ensured that our mother was outside the room while taking instructions for the will. He also had the deceased read the will out aloud and confirm that he was satisfied with the wording before signing it.
  • As for the allegation that the deceased’s signature on the will was forged, our forensic scientist was not prepared to say that it was.
  • The will was the deceased’s true intended will and the court must uphold the judge’s grant of probate.

So, which case won?

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Expert commentary on the court's decision

Kelly Brown
Kelly BrownLawyer
“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.”
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 form of the disputed will is, to my mind, surprising for a document that is supposed to have been taken down in longhand at the dictation of an elderly, mortally ill, unsophisticated and unlettered man, as the testator evidently was. As I follow the evidence [of Mr. Voigt] he did not know, when he began to write, what the testator wanted to say. Yet the single page is of almost copybook neatness – consistent and uniform in its text, balanced, regular and orderly in its layout and margins, showing a surprising uniformity in pressure of the ball point pen and without a single slip or sign of error or hesitation.

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?

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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