Estate Litigation Senior Associate Duncan MacDougall examines a NSW court decision involving a 92-year-old woman’s Will which was thrown out amid suspicious circumstances, after she cut out charities she had supported for years and left her estate to her de facto stepson.
The Supreme Court of New South Wales has rejected a Will signed by 92-year old Wilma Pusterla just weeks before she died, which would have left her $3 million estate to her de facto stepson. Five of her previous Wills had instead benefited several charities and close friends.
In The Estate of the late Wilma Annette Pusterla [2026] NSWSC 951, Justice Kate Williams found that Wilma did not know or understand the practical and legal effect of the document she signed. The solicitor who had drafted it had never spoken to her directly and everything had instead been handled through her stepson, Jeff, who stood to benefit from the changes the most.
What happened in this case?
Wilma Pusterla died in December 2023, leaving an estate worth about $3 million, made up mainly of her home in Willoughby, Sydney, which she had inherited from her parents.
The Will was signed at the respite facility that she had only recently entered after several falls living at home on her own. The solicitor who had prepared it, Mr Mahey, was not present for the signing and had never spoken directly to Wilma at any point. All instructions for the new Will were provided to him by Jeff.
Six charities that had benefited from her previous five Wills challenged the 2023 Will. These included Taronga Zoo, the Multiple Sclerosis Society of NSW, Guide Dogs NSW/ACT, the World Wide Fund for Nature Australia, the Royal Institute for Deaf and Blind Children and the International Fund for Animal Welfare.
Despite evidence that Wilma had short-term memory problems, the judge found that she could still communicate, express her own views and remained engaged with matters around her. On that basis, she was found to have had testamentary capacity, and the court did not ultimately find undue influence.
Instead, the case turned on whether Wilma knew and approved the contents of the Will she signed.
The judgment: Will under suspicious circumstances
Ordinarily, once a Will is properly signed and witnessed and the Will-maker is shown to have capacity, the law presumes they knew and approved its contents. But where circumstances are suspicious, the court will look more closely at claims the Will was invalid.
Several factors raised suspicion in this case. Wilma was legally blind due to years of macular degeneration, and the 2023 Will was read out to her with no lawyer present to check or document that she understood the Will. Jeff had also been heavily involved in handling the drafting of the Will, and while he did leave the room when it was signed, it was his friends (strangers to Wilma) who were the witnesses.
Wilma had also chosen not to use the solicitors who had prepared her previous Wills and had not told any friends or the charities that previously benefited that they would be removed. There was also a clear gap between what Wilma apparently communicated (that Jeff should receive her house) and what the Will actually did (leave him her entire estate).
“The Will is invalid because it was executed in suspicious circumstances and the evidence does not establish that the deceased knew and approved the contents of the Will and appreciated the gravamen of the document,” Justice Williams said in her ruling, which was handed down August 11.
She said the 2023 Will “was not rational” given the way it departed from the deceased’s “long-held intention to give a significant portion of her estate to each of the charities she had actively supported over many years.”
The judge was additionally critical of the solicitor’s conduct, who had never independently confirmed her wishes. “The manner in which Mr Mahey subsequently discharged his retainer was highly questionable, to put it mildly,” Justice Willams said.
How the court assesses suspicious Wills
When a Will is challenged based on suspicious circumstances, the person seeking to uphold the Will must show the court that the Will-maker knew and approved of its contents.
As in this case, the court will typically consider:
- Who was involved in the preparation and execution of the Will,
- Whether there have been drastic changes to beneficiaries,
- How instructions were communicated, and by whom,
- Whether the Will-maker discussed the changes with friends or family,
- Whether the Will-maker had the opportunity to obtain independent legal advice,
- Whether the Will-maker was given time to read, consider and reflect on the new Will against previous versions, and
- Whether the new Will is irrational when compared with the Will-maker’s previous Wills, actions or known wishes.
Lessons learned
One significant red flag in this case was how dramatically Wilma’s new Will departed from her previous Wills, combined with the fact that the person who stood to benefit the most from those changes was the one who arranged it.
Jeff, who was also Wilma’s attorney and guardian under enduring power of attorney and enduring guardian appointments, contacted a solicitor he had previously used and provided the instructions for Wilma’s new Will himself.
Certainly, an older or infirm person can be assisted with updating their Will. It’s common for family members or friends to support older individuals with everyday tasks as these become more difficult. In fact, Wilma had previously relied on a close friend who died only a few years before her to take her to medical and legal appointments. She had also become quite reliant on Jeff as her health deteriorated.
Relationships and circumstances change, and people are entitled to change their minds and update their Will. But they must understand the ramifications of doing so and be able to explain the reasons for the changes.
It is the Will-maker who must give their instructions to their lawyer, and the person assisting them should not be in the room when those instructions are given.
A good lawyer will know what questions to ask: whether the Will-maker fully understands the practical effect of the changes, whether they understand what is in their estate and whether they are aware of who else might be entitled to make a claim against it, for example.
If a Will is challenged after the Will-maker’s death, a solicitor’s file notes become evidence to show that proper inquiries were made, and that any red flags for suspicious circumstances or undue influence can be explained.
Attwood Marshall Lawyers – expert advice on estate planning and estate diputes
If you need to update your Will, it’s imperative to get independent legal advice to protect both you and your estate.
If you have concerns about the validity of a loved one’s Will or believe undue influence or a lack of capacity may have affected how it was made, getting legal advice early is crucial as strict time limits apply to challenge a Will.
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