What happens when a will is created in suspicious circumstances and without the knowledge and approval of the testator?

18 Sep What happens when a will is created in suspicious circumstances and without the knowledge and approval of the testator?

The importance of the circumstances in which a will is prepared and executed, and the role of solicitors in will preparation.

Harris & Company recently acted for a group of six charitable beneficiaries in respect of contested probate proceedings in the Supreme Court of NSW – The Estate of the Late Wilma Annette Pusterla [2026] NSWSC 951. The charities were the residuary beneficiaries entitled to the residue of the deceased’s estate under a number of prior wills, including the penultimate will made in August 2020. There was a dispute over whether the deceased’s final will made on 12 October 2023 (just over three months prior to her death), and which departed significant from all of her prior testamentary intentions by leaving the entirety of her estate to her adult step-son should be upheld. It was alleged by the charities that the final will created in 2023 was created in suspicious circumstances (without the deceased’s knowledge and approval), or was otherwise procured by way of undue influence or in the absence of testamentary capacity.

In this case, while the Supreme Court found that while there was insufficient evidence to establish a lack of a capacity, or undue influence (which is a notoriously hard case to prove), the step-son’s own evidence (including evidence of his solicitor who prepared the will) demonstrated that the 2023 will was prepared and signed in suspicious circumstances and the plaintiff failed to discharge his onus of proving that the deceased knew and approved the contents of the will which the deceased signed. The Court placed particular emphasis and criticism on the deficiencies in the way in which the will was prepared, and the manner in which instructions were taken for its preparation.

The Court ultimately found the 2023 was invalid and found in favor of the charities upholding the validity of the earlier 2020 will.

Key Takeaways
The decision highlights the significance of following proper procedures when creating a will, and places emphasis on the role of the solicitor in obtaining instructions directly from the testator and ensuring that the testator understands and approves the contents of the will. While people may assume that will preparation is a simple task, even a simple and plainly drafted will requires proper care and record of its preparation and execution to ensure its validity is upheld in the event of a dispute. This case reminds both clients and solicitors the weight which the Court will give to the evidence of a solicitor who prepares a will and the care which needs to be taken to properly take instructions from the client, and to ensure the client understands the terms of the document which they are signing.

Even where a testator has testamentary capacity, the circumstances in which the will are prepared are relevant. In this case the deceased was legally blind (i.e. could not read the will prepared for her), did not ever provide direct instructions for the preparation of the will (which was done solely by the person who became the ultimate beneficiary/executor of the 2023 will), she never spoke to the solicitor who prepared the will to confirm the instructions (nor did the solicitor ever take instructions directly from her), the will was a significant departure from all prior testamentary intentions, the will was witnessed by two strangers to the deceased, no proper enquiries were made as to whether she understood the will or what had been read to her and placed in front of her by the beneficiary to sign and the will which was ultimately signed did not match the instructions which were given by the beneficiary to the solicitor when asking for the will to be prepared.

A solicitor would normally ask critical questions of a testator when preparing a will and make notes of those conversations and instructions to ensure that the will reflects the testator’s instructions, and that the testator knew and approved of its contents.

Facts
The case concerned the estate of the late Wilma Annette Pusterla, who died on 17 December 2023,

The plaintiff, Philip Jeffrey Beaumont Smith, sought probate in solemn form of a will dated 12 October 2023, under which the deceased appointed him as sole executor and left her entire estate to him. The estate was valued at approximately $2,994,402 million, consisting principally of a property in Willoughby valued at approximately $3.13 million, together with shares and cash.

The defendants were the named charities who were entitled to the entirety of the deceased’s estate under Ms. Pusterla’s previous will dated 25 August 2020 (along with a number of prior wills made between 2012 to 2020). The deceased had been a dedicated donor to the charities over many years and had attended numerous events and functions for her beloved charities.

The plaintiff was the son of Mr. Philip Lamond Smith, with whom the deceased had been in a relationship from the mid-1970s until his death in 2016. Although the plaintiff did not live with the deceased during his father’s lifetime, the evidence established that he maintained contact with the deceased after his father’s death. His contact was relatively infrequent, partly due to geographical distance, COVID-19 restrictions and health issues affecting the plaintiff and his wife. Nevertheless, the relationship was sufficient for the deceased to appoint the plaintiff as her alternative enduring guardian and alternative executor in August 2020 [47] . In May 2023, the deceased also asked the plaintiff to act as her enduring guardian and attorney.

Prior to the disputed will, the deceased had made a will dated 25 August 2020 under which significant portions of her estate were to be left to charities she had actively supported for many years. In contrast, the 12 October 2023 will left the entirety of her estate to the plaintiff. The plaintiff gave evidence that, during a visit in September 2023, the deceased told him, “I’m leaving the you the house” [87] . However, he accepted in cross-examination that the deceased had never told him that she intended to leave him her entire estate [98] .

The circumstances surrounding the preparation and execution of the October 2023 will were significant. The plaintiff contacted solicitor Mr. Mathey on 18 September 2023 to arrange preparations of the will for the deceased. Mr. Mathey had previously acted for the plaintiff and had met the deceased on one occasion, but he did not take the instructions directly from the deceased. He prepared a simple will and ultimately sent the draft to the plaintiff by email on 11 October 2023 [95] . The deceased had not previously seen the will, and Mr. Mathey did not discuss its contents with her. He also did not attend to witness its execution [96] . The plaintiff knew that the deceased had previously used another solicitor, Atkinson Vinden, who was located closer to the hospital where the deceased was staying, but the Court found that he did not provide a cogent explanation for engaging Mr. Mathey instead [59] .

There was additional evidence concerning the deceased’s cognitive condition. Although no significant cognitive impairment had been identified in a mini-mental state examination conducted in December 2022, signs of short-term memory loss were observed in late July and early August 2023. A junior medical officer further considered those observations suggestive of some underlying cognitive impairment, although no formal diagnosis was made [89] .

The charities challenged the validity of the October 2023 will alleging that the deceased lacked testamentary capacity, alternatively that the deceased did know and approve the contents of the will, and alternatively that the will was the product of undue influence and control by the plaintiff. The plaintiff disputed those allegations but accepted that, if the October 2023 will be not upheld, the 2020 will should be admitted to administration.