SON QUESTIONS HIS MOTHER’S WILL

Lewis v Lewis [2020] NSWSC  1306 (25 September 2020) 

This case is about a probate proceeding where Peter, the son of the testator, opposed the grant of the probate of the will questioning her testamentary capacity and whether the testator (mother) knew and approved of the contents of the will. 

Facts: 

These are probate proceedings concerning the testamentary dispositions of Pamela Lewis. She has four sons: Peter, David, Roger and Hugh. The testator’s last will (or purported will) was dated December 2014. This was followed by two codicils dated May 2015 and August 2015.  

In these proceedings David is the plaintiff and Peter is the defendant. David propounds the December 2014 will and the two codicils to it. Peter actively resists the admission of these documents to probate.  

The December 2014 will conferred on David immunity from the claw-back provisions, which no other beneficiary had. Of itself, the court thinks that this was a “substantial benefit”.  

Furthermore, it was clearly contemplated that David would be the Trustee. In that capacity there were conferred on him broad discretionary powers which were intended to allow him to make substantial reductions to (and possibly even defeat entirely) the legacies to other beneficiaries. He could also exercise the power to distribute to himself up to 80% of any monies clawed back. And, if the clauses purporting to allow the Trustee to “deal with” the shares in the Lewis Company and the beneficiaries’ interests in the Hughes Trusts were valid, he could exercise those powers in his own favour as well. In my view the conferral of such powers should also be seen as a “substantial benefit” for relevant purposes. 

Issue: The issues raised by Peter in opposition to the grant of probate are whether the testator had testamentary capacity and whether the testator relevantly knew and approved of the contents of each instrument. 

Law: 

• Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 

“Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator” 

Analysis: 

As to the testamentary capacity 

In their correspondence with the testator and among themselves from 2012 onwards, none of Peter, Roger or Hugh evinced any concern that the testator lacked capacity to make financial decisions. What the correspondence reflects is their frustration that the testator would not listen to any criticism of David or take control of her affairs away from him. They were obviously concerned that her judgment had been warped by her trust in David and she was allowing herself to be manipulated by him. But there was no apparent concern that, putting his influence to one side, she lacked the cognitive ability to manage her affairs. 

It is the court’s opinion that the testator’s memory loss was not sufficiently severe to deprive her of capacity to understand the nature and effect of executing a testamentary instrument, or the nature of her assets, or the claims on her estate. 

As to the knowledge and approval of the contents 

Clauses 12 to 16 give rise to different considerations. They all involve, in one way or another, the disposition of interests in, or the exercise of rights over, the Lewis Company, the Hughes Companies or the Hughes Trusts. The court concluded at that the testator lacked a general understanding of the company and trust structures established as a result of the implementation of the “succession plan” in 2012. At a minimum, it would have been necessary to ensure that the testator had the key features of those structures in mind when she was being asked to approve the clauses in question. 

Underlying all of this is the testator’s apparent lack of interest in the structure and workings of the family investments, and her willingness to leave such matters to David. It is all too easy to imagine the testator having clauses 12 to 16 read to her and treating them as the auditory equivalent of David “droning on and on”. On balance the court is not satisfied that the testator had sufficient knowledge and paid sufficient attention to satisfy the knowledge and approval requirement. 

Conclusion: 

That the testator has the testamentary capacity in executing the will. However, testamentary provisions which gives control of family companies cannot be admitted probate for the testator’s lack of sufficient knowledge and approval. 

#Succession #Probate