In the case of Bracher v Jones (No 2) , a dispute arose between a brother and sister over the deceased estate of their mother. During her lifetime, the mother had always planned to leave her estate equally to her children when she died, however, one child took matters into his own hands, coercing his incapacitated mother to change her Will as she neared the end of her life. Attwood Marshall Lawyers Estate Litigation Senior Associate Martin Mallon discusses the case which involves issues around the testamentary capacity to sign a Will, undue influence, homemade Wills, contesting and challenging a Will, probate, family provision applications and who may be held responsible for legal costs when litigation ensues.
Leila Jean Jones (“Leila”) and John Stanley Jones (“John”) owned two adjoining beachside properties on the south coast of New South Wales. They maintained both properties and did not lease one out throughout a substantial period. Mr and Mrs Jones intended to leave their children, Stephen and Diane one property each after their death. Their desire to leave one property each was documented in their Wills for over 30 years.
The properties were comparable in value with one property worth approximately $2,225,000 and the adjoining one valued at $2,575,000.
John died in 2004, leaving Leila responsible to maintain the properties. Leila continued to pay land tax and rates on one unoccupied property due to her long-standing testamentary intention to leave one property to each of her surviving children.
On 13 June 2013 Leila handwrote and signed a homemade Will which effectively left her entire estate to Stephen to the exclusion of Diane despite two lawyers having raised concerns about her testamentary capacity.
On 19 June 2013, Leila signed a further Will leaving her entire estate to Stephen to the exclusion of Diane
Leila died on 7 May 2015, at the age of 92 in the State of New South Wales.
On 21 July 2016 the Supreme Court of New South Wales granted Probate in “common form” of the 19 June 2013 Will to Stephen as named executor.
Diane subsequently filed a Statement of Claim in Court seeking an Order to revoke Probate on the basis that her mother lacked testamentary capacity to sign her 19 and 13 June 2013 Will, did not truly know and approve the contents of the Will, and was unduly influenced by Stephen to alter her Will. Diane applied to revoke Probate of the 19 June 2013 Will and sought orders that Probate of Leila’s penultimate Will executed on 28 June 2010, which left one property to Diane and Stephen respectively be granted to her in solemn form. In the alternative, Diane sought an Order that she be awarded further provision for her proper maintenance and support from the estate commonly known as a “Family Provision Application”.
Stephen resisted Leila’s application and denied that Leila did not know of, or approve, her 19 June 2013 Will or that he unduly influenced his mother to make such changes.
In what was described by his Honour Justice Robb as quite exceptional and entirely devoid of merit, Stephen sought leave of the Court to file amongst other things, a Family Provision Application (via an Amended Cross Claim) outside the limitation period.
Ultimately one of the parties were “penalised” for refusing to accept a Calderbank without prejudice offer of settlement on terms which were more favourable than the decision of the Court.
Summary of main evidence – Undue influence and capacity
Diane had a close relationship with her mother and father throughout their life. Upon her father’s death in 2004, Diane took on the role of primary carer for her mother, taking her to medical appointments and the grocery store, assisting with cleaning and managing her banking affairs. Towards the later end of Leila’s life, Diane sat down with her mother each year and handwrote her Christmas cards.
Up until 28 June 2010, Leila’s Will reflected her long standing testamentary intention to leave Diane and Stephen one property each and her estate divided equally between them.
During the later stage of Leila’s life, her son started operating under a delusion or distortion of reality, accusing his sister and other members of the family of taking items from the beachside properties. In approximately 2013, Stephen moved in with his mother
Despite Diane undertaking most of her care, Stephen had the locks to the properties changed. From this point, Diane found it difficult to visit her mother because she had to obtain Stephen’s consent to do so.
The Court heard that Stephen became obsessed with the idea that he was entitled to the entire estate and incessantly demanded that his mother change her Will to exclude his sister. Stephen also claimed that he was owed $150,000 because his father had ripped him off financially.
On two separate occasions Stephen arranged appointments for his mother to see lawyers for the purpose of signing a new Will.
On one occasion Stephen arranged for his mother’s regular lawyer Ms Sinclair to attend the property to take instructions. Ms Sinclair gave evidence in Court that she was “absolutely certain” Leila was confused and unable to give instructions. Ms Sinclair wrote a detailed file note with respect to her concerns about Leila’s capacity and possible undue influence by Stephen.
Stephen arranged for Leila to see another lawyer who formed similar views about her capacity. It was strongly recommended that Leila attend her medical practitioner for the purposes of an assessment on her testamentary capacity and obtain a letter confirming the outcome prior to taking steps to execute a new Will. The solicitor also noted that when refreshed with the terms of Leila’s 2010 Will, the mother did not seek to make changes because she thought the document was “fair”.
On 23 May 2013, a lawyer sent Leila’s general practitioner a letter seeking his opinion on whether she had capacity to make a new Will pursuant to the long held legal test outlined in a 1870 case of Banks v Goodfellow.
Following on from this appointment with the solicitors, on 13 June 2013, Leila made a “homemade” Will in an exercise book. The homemade Will left Leila’s entire estate to Stephen to the exclusion of Diane. The 13 June 2013 Will contained an unusual clause, for someone without legal qualifications stating that she had not made any provision for her daughter because she had been adequately provided for by her father during his lifetime. There was no evidence that this was true (in fact, the evidence was to the contrary). Furthermore, there was no evidence that the deceased held this belief.
Stephen denied any suggestion that he made an initial draft of the homemade Will for his mother to copy and that he witnessed his mother writing the Will.
His Honour found it “incredible that a 90-year-old housewife, with no legal qualifications or experience, could have prepared the document on their own in a single draft, or otherwise, containing the changes that it did from the 28 June 2010 Will.”
Following Leila’s homemade Will she allegedly told Stephen that she needed to “make it legal” and asked him to arrange an appointment with a lawyer.
On 23 May 2013 Leila had a conference with solicitor, Mr Cooke. At the time of the Bracher v Jones hearing in 2022, Mr Cooke had suffered four strokesand was incapacitated to give evidence. The Court relied on Mr Cooke’s file notes and evidence of his secretary at the time
The solicitor’s file contained a letter dated 18 June 2013 addressed to Leila enclosing a draft Will. On 19 June 2013 Leila signed a Will leaving her entire estate to Stephen to the exclusion of her daughter. It further excluded two of Leila’s grandchildren (Diane’s children) in the event Stephen predeceased his mother. The gift over clause left Leila’s estate to Stephen’s son, Benjamin Stephen Jones, and if that gift failed, to Benjamin’s partner.
There was no evidence to suggest that Mr Cooke was aware of any issues with respect to Leila’s capacity or undue influence. There was no letter from her General Practitioner confirming she had testamentary capacity. The file did not contain any evidence about why Leila decided to exclude two her grandchildren.
The medical evidence was limited. Stephen relied on three reports by Dr Christley, geriatrician and rehabilitation physician. The report noted that Leila had a “mild cognitive impairment that is vascular related”. In his report, Dr Christley opined that unless Leila was “having a bad day, she’d be able to make decisions on her own”. In another report, Dr Christley noted his view that Leila “meets the diagnostic criteria of mild cognitive impairment” despite obtaining a result of 27/30 in an MMSE (Mini-Mental State Examination).
The latest report noted that Leila scored 17/30 in an MMSE although that could have been related to stress. The doctor was of the view that Leila remained stable with a mild cognitive impairment.
There was no medical evidence that specifically addressed the issue of testamentary capacity with reference to the legal test.
In the first decision, the Court was required to determine three primary issues namely:
- Did Leila have testamentary capacity to execute her Will dated 19 June 2013;
- Whether Leila knew and approved of the contents of the 19 June 2013 Will;
- Whether Stephen coerced Leila and/or unduly influenced Leila to make the 19 June 2013 Will that benefited himself to the exclusion of his sister.
In determining the primary issues, his Honour Justice Robb formed the view that Diane was an honest and credible witness. The Court accepted that Diane did not receive any financial assistance from her mother or father, being one of the reason’s Leila excluded her from her estate.
On the other hand, his Honour did not accept Stephen’s evidence unless it was otherwise inherently probable or corroborated by objective evidence on the basis that he was an “entirely unsatisfactory witness”.
The test for establishing whether a Will-maker has mental capacity to write and sign a Will was set down in the case of Banks v Goodfellow (1870). Under the Banks v Goodfellow test, the Will-maker must:
- understand the nature of the Will and its effect;
- understand the extent of the property of which they are disposing by the Will;
- comprehend and appreciate the people with an interest in their estate and who may be entitled to make a claim against their estate when they die;
- not be suffering from any disorder of the mind or insane delusion that would result in an unwanted disposition.
In applying the test, his Honour accepted that on the evidence there is a presumption that Leila had the requisite capacity to make the 2013 Will. His Honour was of the view that Diane raised extreme doubt pertaining to Leila’s capacity.
The Court relied on evidence from solicitors who had assessed Leila’s capacity and had concerns notwithstanding there was scant medical evidence in support of those views.
His Honour was of the view that this was an unusual case because it was not the Will-maker who suffered from delusions, but rather Stephen, who persisted in seeking to have his mother change her Will to leave the entire estate to himself.
The Court determined that on the balance of probabilities that Leila lacked testamentary capacity to make her 19 June 2013 Will. On this basis, Justice Robb opined that probate of the said Will ought to be revoked.
The Court found the circumstances behind the preparation and execution of the 2013 Wills were highly unusual noting Leila’s age, and that prior to executing this Will she had required Diane’s assistance to handwrite her Christmas cards. The inclusion of a clause outlining her purported reasons on why she left Diane out of her Will, appears to be at least in part, drafted by someone who was legally trained in an attempted to avoid a possible family provision application.
The Court granted Probate in solemn form to the 28 June 2010 Will.
Knowledge and approval
A Will can be set aside on the basis that the deceased did not truly know and approve the contents of the Will. This is also known as a claim in relation to ‘suspicious circumstances’ and usually arises in a situation whereby a Will is changed to benefit a particular beneficiary and that beneficiary was actively involved in the change of the Will.
It was noted that Leila handwrote her draft Will of 13 June 2013 and there is no better proof that she had actual knowledge. On this basis the Court was not persuaded to find that Leila did not know and approve the 19 June 2013 Will.
In order to set aside a Will on the basis of undue influence, the Court must be satisfied that the will-maker’s wishes were overborne in relation to the terms of the Will. It must be more than mere persuasion and that the Will-maker ‘was not led but driven’ to make the decisions they made under the terms of the Will.
The party alleging undue influence has the onus to always prove the allegation on the balance of probabilities and does not shift if sufficient doubt is raised.
Undue influence is determined on a case-by-case basis noting that some people have a strong will and ordinary fortitude, and others may be more susceptible.
Based on the evidence presented in the Bracher v Jones case, his Honour determined that there was no reason to explain Leila’s decision to abandon her long held testamentary intention with respect to the two properties other than this being caused from Stephen’s “incessant and obsessive” demands resulting in coercion and undue influence.
Undue influence was established.
The initial decision
His Honour revoked the 2013 Will and granted Probate in solemn form to Leila’s Will dated 28 June 2010.
FPA claim out of time
From that acorn of misconduct sprung a forest of litigation, including a family provision claim from each child. Following Diane’s successful application seeking to revoke probate of the 19 June 2013 Will on the basis that Leila lacked testamentary capacity and /or was unduly influenced by Stephen, she was entitled to one of the deceased’s properties and effectively ½ of the estate. Accordingly, she did not seek to pursue her Family Provision Application.
Stephen was dissatisfied with the outcome and sought leave of the Court to pursue his Family Provision Application outside the prescribed limitation period of 12 months from the deceased’s death and to obtain an order to that effect despite effectively receiving ½ of the estate.
A Family Provision Application is a process that allows certain individuals to contest a Will for a share, or larger share, from the estate of the deceased person. Section 60 of the Succession Act 2006 (NSW) outlines factors that a Court may consider in determining a Family Provision Application.
The Court noted that Diane and Stephen had similar financial and health circumstances, and each received effectively 50% of the estate.
His Honour opined that there has “never been any likelihood that a Judge of this Court would make a family provision order in favour to Stephen that gave him a substantial preference over Diane and disturbed the long-term testamentary intentions of Mrs Jones and her husband”.
The Court refused Stephen leave to commence a Family Provision Application out of time on the basis he had no reasonable prospects of success and in any event, formally dismissed the claim
Adverse costs awards
After the mother died, the son had been in control of his mother’s testamentary kingdom for a short period. Sadly, he had taken poor care of it. With the sister now entitled to her share of the estate, she sought orders for the brother to recompense the estate for outstanding debts he had accumulated whilst managing the estate. The Court ordered that a report be prepared to inform it of such debts, to assist any decision to sell estate assets to satisfy them.
As for costs, in addition to ordering the brother to repay the estate its costs that accrued in defending the son’s family provision claim, it ordered that he repay the estate’s costs of continuing to oppose his sister’s claim, which was ultimately successful, in the probate undue influence claim.
The number of legal fees incurred in this matter was astounding. The son had been through several lawyers before the final hearing, and his costs accumulated to more than $350,000. On the other hand, the daughter’s legal costs were $145,000, which bought the total legal costs to litigate the dispute close to $500,000.
In an effort to resolve the matter, on 15 February 2018 Diane made a Calderbank offer to resolve the claim on the basis that the estate be effectively split evenly between the surviving children.
A Calderbank offer is an offer made “without prejudice” by one party to another in an attempt to resolve the dispute.
Whilst Stephen’s new lawyers advised on 23 March 2018 that he accepted Diane’s offer and consent orders were signed, Stephen sought to walk away from the offer by informing the Court that due to a speech impediment he was misunderstood and told his lawyer that he did not accept the proposed terms of settlement.
In a final rebuke to Stephen’s claim and conduct in the proceedings, the Court ordered that he pay Diane’s costs of the proceedings on a standard bass up to 8 June 2018 on an indemnity basis thereafter noting her offer of settlement to resolve the claim which was ultimately rejected by Stephen.
Indemnity costs are only awarded in exception circumstances and the Court was satisfied that Stephen’s refusal of Diane’s Calderbank offer was unreasonable.
In light of Stephen’s conduct, it appears inevitable that both properties will need to be sold to satisfy the cost orders.
The adverse cost outcome is a reminder to applicants, respondents and lawyers of the risks and consequences involved in estate disputes and the importance in seeking advice from a lawyer who practices exclusively in the area.
Attwood Marshall Lawyers – experts in estate litigation
If you wish to challenge someone’s Will because you believe the Will-maker was unduly influenced when making the Will, or you suspect they lacked the testamentary capacity to execute a Will it is essential to obtain advice from a lawyer who practices exclusively in estate disputes, as early as possible. This is an extremely complex area of law and any delay in seeking advice may seriously prejudice your rights and interests.
Whether you are contesting, challenging, or defending a Will, you will need an experienced estate litigation lawyer to review your case to determine your prospects of success. Failure to obtain advice from a lawyer who practices in the area may result in a costly and fruitless outcome.
Strict time limitations apply when contesting a Will, and if you fail to bring your application in time, it is likely you will lose your right of action forever.
Our estate litigation lawyers can review a claim and help procure what an eligible beneficiary is justly and legally entitled to or defend an estate and ensure the deceased’s wishes are upheld.
Succession Law legislation differs between each state and territory. Therefore, it is imperative to engage a solicitor who has the skills and expertise to represent you and your matter in the relevant state. Our team are well-versed in representing clients in estate litigation matters throughout every jurisdiction throughout Australia including Queensland, New South Wales and Victoria.