Louise Michelle Reeves v Clayton Peter Drew & Ors.

In probate proceedings, testamentary freedom does not remove the requirement to prove that the testator knew and approved the will’s contents. Due execution and testamentary capacity ordinarily assist the propounder, but the court must assess all relevant circumstances holistically. A substantial unexplained departure from earlier testamentary intentions, combined with suspicious features in the will-making process, may require affirmative proof that the later will represented the testator’s wishes.

Testamentary undue influence requires proof that coercion overbore the testator’s free will. Persuasion, affection, dependence or a desire for a quiet life is insufficient unless the testator’s volition was overborne.

The claimant sought probate in solemn form of a will made by Kevin Patrick Reeves on 7 January 2014. That will left 80% of the residuary estate to the claimant and 20% to her sister, excluding the deceased’s son and grandchildren who had benefited under a 2012 will.

The defendants challenged the 2014 will on the grounds that the deceased did not know and approve its contents and, alternatively, that it was procured by the claimant’s undue influence. Due execution and testamentary capacity were not disputed. The central issues were whether the 2014 will represented the deceased’s true testamentary intentions and whether his free will had been overborne.

1. Knowledge and approval. The claimant bore the burden of proving, on the balance of probabilities, that the deceased knew and approved the contents of the 2014 will. The court adopted a holistic assessment of all relevant evidence. Due execution under Wills Act 1837, section 9, and testamentary capacity created substantial assistance but were not conclusive.
2. The change from the 2012 will was substantial and lacked a credible explanation. The deceased had continued to maintain close personal and business relations with the son whom the 2014 will excluded, and there was no persuasive reason for excluding the grandchildren or reducing the sister’s share. The 80/20 division was retained, but the beneficiaries were radically altered.
3. The will-making process contained serious irregularities. The solicitor’s attendance notes were inconsistent and unreliable. The claimant had extensive involvement in arranging the meetings and communicating with the solicitor, received the draft will, and remained present at the execution meeting. The solicitor did not obtain specific confirmation of the radical change from the deceased, and the will was not proved to have been read by or read to him.
4. The deceased had very poor literacy and was unlikely to have been able to read the complex legal language of the will. The claimant therefore failed to prove that the deceased knew and approved the 80/20 division in favour of the claimant and her sister.
5. Undue influence. There is no presumption of undue influence in probate. The defendants had to prove coercion which overbore the deceased’s free will. Although the claimant was found to be manipulative and capable of ruthless conduct, the evidence did not establish that the deceased’s volition was overborne. The undue influence claim was dismissed.
6. The court pronounced against the force and validity of the 2014 will and pronounced for the validly executed 2012 will in solemn form of law.