Our law firm is proud to have successfully represented the applicant in a significant probate case in the Supreme Court of Queensland: Re Uscinski [2024] QSC 131. This case provides a blueprint for how to proceed in circumstances where there is evidence to support that a will is invalid (e.g. due to lack of testamentary capacity, undue influence, lack of knowledge and approval, suspicious circumstances, etc), but it has already been admitted to probate.
Despite how commonly this issue arises in practice, there are very few written judgments specifically dealing with this situation. This sentiment was echoed by former Chief Justice Holmes in the 2019 case of Aronis v Aronis & ors, where she noted that, “authority on the considerations relevant to the exercise of the discretion under r 640 is scant.” There is now at least one more authority to rely upon when seeking to have a grant of probate revoked.
Background
The case involved the estate of Ille Uscinski (deceased), who passed away at the ripe old age of 102, leaving an estate in Queensland. The deceased made a last will dated 23 January 2018 (2018 Will), which was admitted to probate in common form by the Supreme Court of Queensland on 17 October 2022.
The applicant questions the validity of the 2018 Will on the basis that the deceased did not have testamentary capacity and/or did not know and approve of its contents. The applicant did not have to prove the 2018 Will was invalid to be successful in the application; rather she merely had to prove a sufficient interest in the estate and that there was a triable issue in respect of the validity of the 2018 Will.
General legal principles
Caveats
If a person holds concerns regarding the validity of a will, they can prevent a grant of probate being issued by filing a caveat against a grant in the Supreme Court. This buys the caveator time to investigate the circumstances surrounding the preparation and execution of the will, with a view to satisfying themselves of those concerns or alternatively requiring that the will be proved in solemn form.
Solemn form probate
A grant of probate in solemn form requires a formal proceeding in the Supreme Court where a judge determines whether a will is valid, as opposed to a grant of probate in common form, which is generally made by the registry without a formal proceeding.
Application under rule 640
If a grant of probate has issued prior to a caveat being filed, the concerned party will need to consider filing an application to have the grant of probate returned to the registry pursuant to rule 640 of the Uniform Civil Procedure Rules (Qld), as was the case here.
The application is costly, and the outcome is far from certain, so the prospects of success must be carefully considered before proceeding.
The proceedings
The applicant relied on the following factors to demonstrate a triable issue as to lack of capacity and knowledge and approval:
The deceased was 98 years old when the 2018 Will was signed.
The death certificate listed “dementia” and “frailty” as causes of death, with the period of those illnesses being “years”, which was proximate to the date of the 2018 Will.
The deceased’s signature on the 2018 Will was noticeably different when compared with signatures on prior wills, which was indicative of an enfeebled testator.
The deceased provided significant provision for the applicant under all of her prior wills (1991, 1996, 2003 and 2006), but no provision for the applicant in the 2018 Will, despite there being no meaningful change in the relationship since around 2000. For example, under the 2006 Will the applicant received an unencumbered Palm Beach property, under the 2003 Will she received the Palm Beach property plus 25% of the residue of the estate.
The file note of one of the solicitors involved in the preparation of the 2018 Will demonstrated:
- The solicitors were concerned enough about capacity to contact the Law Society Ethics Department to take advice regarding a doctor’s note.
- The 2018 Will was “pre-prepared” by the solicitors before attending with the deceased and it was unclear who provided the instructions for the pre-prepared document.
- All communications with the law firm involved appeared to be with family members of the deceased not the deceased herself, and each of those family members substantially improved their position under the 2018 Will.
- An earlier appointment had not gone ahead as “Apparently the old lady became quite distressed and didn’t want to proceed on that day”.
- The solicitor asked leading questions rather than open ended questions.
- The deceased needed to be prompted to recall the existence of the applicant as her child in circumstances where the main purpose of the will was to substantially disinherit the applicant.
- The medical evidence was limited to a doctor’s letter which did not address testamentary capacity.
The respondent contended that despite the above factors no triable issue had been raised to enliven the jurisdiction under rule 640. It was submitted by the respondent’s learned Counsel at [13]:
A letter from a doctor at a hospital dated 7 December 2017 is one of three particular factors that allay suspicions about testamentary capacity and knowledge and approval. The letter records “our belief that [the deceased] has retained her mental capacity and is capable of understanding and deciding her own medical care and personal decisions at this time”.
Second, it is obvious from the solicitor’s file note dated 18 January 2018 that at least one of the solicitors gave consideration to the deceased’s capacity and proceeded to take her instructions on 23 January 2018 and, it is said, implicit is that the solicitor ultimately had no concerns about her capacity.
Third, a statutory declaration, made on the same day as the will was executed, contains an explanation about why the deceased made no provision for the applicant. That explanation included that in the preceding 15 to 20 years the deceased’s attempts to engage with the applicant through correspondence had been “rejected”, that the applicant had shown no interest in her and did not desire a relationship with her, had disowned her and that “any” provision to her would unfairly disadvantage the deceased’s beneficiaries.
The respondent said further that reliance upon the deceased’s old age, differences in signatures, dementia and change in testamentary capacity, even considered all together, do not rise above the level of mere suspicion or conjecture.
However, the learned judge disagreed, noting at paragraph [14]:
“However, the doctor’s letter of 7 December 2017 was not directed to the issue of testamentary capacity. The circumstance that the solicitors proceeded with taking instructions is not determinative and may, in fact, be regarded as neutral. No file note has been put into evidence recording satisfaction that the deceased had testamentary capacity. At the same time, the solicitors were obliged to act on coherent instructions. The applicant disputed the assertion in the statutory declaration that she had rejected any attempts by the deceased to contact her.”
The Court's Decision
Justice Copley found that the facts in relation to capacity and knowledge and approval were inconclusive, which meant there was a triable issue to be determined.
The court ordered that the respondent, as the executor, bring the original grant of probate into the registry and commence proceedings for a grant in solemn form. This decision effectively recognised the applicant's concerns about the will's validity.
Implications for Future Cases
This case offers valuable insights into the process for challenging the validity of a will, especially in circumstances where an earlier grant of probate must be overcome prior to filing proceedings to challenge the validity of a will.
Conclusion
If you are facing issues related to probate, the validity of a will, or concerns about testamentary capacity and dementia, our expert legal team is here to provide guidance and representation.
For more information or to discuss your case, please contact our office. We are dedicated to providing expert legal services and support to help you navigate the complexities of probate law.
Article by Sean Powell
Sean leads the Estate Litigation Team at Robbins Watson Solicitors, a law firm specialising in contested wills and estates. He has a Masters Degree in Applied Law, with a specialisation in Wills and Estates.
You can book a free case appraisal with Sean or one of our other Gold Coast Estate Litigation Lawyers here. You can also select Begin Online to get started with your estate dispute online.