Deficiency in will execution procedure

VEALL v VEALL [2015] VSCA 60

Important decision on the requirements of setting aside a will on the grounds that the testator did not know or approve of the contents. Useful study of “suspicious circumstances” necessary to displace the presumption of knowledge and approval created by due execution of a will.

Summary Part 2

  • Important decision on the requirements of setting aside a will on the grounds that the testator did not know or approve of the contents
  • Useful study of “suspicious circumstances” necessary to displace the presumption that due execution of a will indicates knowledge and approval of its contents by the testator.
  • Essentially an appeal of factual findings. Valuable guidance on the weight to be given to factual matters.
  • Important guidance on what solicitors involved in the execution of a will should do.
  • Important guidance on the evidence necessary to discharge the burden as to knowledge and approval.

This was an appeal from a decision of the trial judge that the last will of the deceased not be admitted to probate because the testator did not know or approve of its contents. Lack of capacity was unsuccessfully asserted at trial but found on appeal. Although evidence as to capacity will be relevant to knowledge and approval this case note focuses on knowledge and approval The VSCA’s reasons on testamentary capacity are the subject of a separate case note (Part 1). The trial judge’s decision on a lack of knowledge and approval was upheld.


The deceased had two children by the first marriage and one by his second. His second wife and third child were set to receive the bulk of his wealth by reason of inter vivos trusts. His eldest child tried to correct this asymmetry in the distribution of the father’s wealth, historical and prospective, including a family court proceeding against the deceased’s wife even though she and the deceased were still living together harmoniously. There was evidence that the deceased wished his children to benefit equally from his wealth. There were several preceding wills before the final one in 2010.

The last will completely excluded the deceased’s third child and, among other things, bequeathed significant assets from a trust which had been sold three years previously.

Relevant principles[1]

A testator must know and approve the contents of a will at execution. Once testamentary capacity and due execution is established, a presumption arises that the testator knew and approved of the contents of the will. The presumption is displaced once the trial judge finds that there were suspicious circumstances attending the execution of the will. Then the onus is on the propounders of the will to establish affirmatively that the testator knew of its contents and appreciated the effect of what he was doing so that it can be said that it contains his real intention and reflects his true will.

The cogency of the evidence necessary to discharge that burden depends on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters. Evidence that a will was prepared on the testator’s instructions and was read by or to him or her before it was executed has been described as ‘the most satisfactory evidence’. It is not conclusive evidence. Where suspicious circumstances existed, the ‘examination that was called for demanded a “vigilant and jealous scrutiny” by the judge.

These principles were not in dispute. The appeal was effectively on questions of fact.

A particular issue was the “..fact that a will has been prepared by a solicitor and read to the testator is powerful evidence that it represents the testator’s intentions”.[2]

Suspicious Circumstances

These are convenient listed at [199] of the VSCA judgement and are very briefly summarized as follows

  • The testator had a history of signing whatever was in front of him;
  • The last will departed ‘radically’ from previous wills;
  • The estate in the will was inconsistent with its description in an affidavit of the testator of around the same date;
  • The radical change in the will to the benefit of the defendant followed a “matrix of sustained activity … designed …” by him to achieve that purpose.[3];
  • He didn’t know who owned his owned house;
  • The testator equivocated between support and dissatisfaction on his sons plans to even up distribution;
  • The solicitor said his notes regarding the execution of the will had been thrown out;
  • The solicitor could not explain the provenance of a deed designed to give the defendant a greater entitlement to family assets;
  • The project to equalize bequests among the children was present in 2009 but did not manifest in will changes like the last one

The VCSA ultimately reasoned that:

“where there was an elderly testator with impaired cognition, who was likely to sign anything put in front of him… Some further explanation was required to ensure that Keith Veall understood the clauses of the new will. Such explanation was particularly required, because…it was not the case that all the provisions of the December will were based on Keith Veall’s instructions.. Keith Veall had cognitive impairment and impaired eyesight and hearing. (the instructing solicitor) needed to ensure that he fully comprehended the effect of the December will”.[4]

The importance of proper will execution is highlighted by this decision. Had the solicitor who took instructions for the last two wills:

  • Not destroyed his notes;
  • No confused which will he actually took instructions for;
  • Not given evidence that the testator was not his client and was not paying for will services;
  • Given evidence that he had explained the terms of the will, particularly the radical change which excluded his daughter;

then the decision purely on knowledge and approval may well have been decided differently. The VSCA extracts nearly 15 pages of oral evidence of the solicitor in question indicating the significance of his conduct. The Court held that in the circumstances of medical evidence of impairment steps to ensure proper comprehension must be taken but noted that solicitor having no doubt as to the testator’s capacity had done nothing wrong. Practitioners might conclude that when dealing with a ninety year old testator it is prudent to seek an independent opinion on capacity.

[1] Summarized by the Court at [166] – [179]

[2] At [184], [192]

[3] At [5]

[4] At [159]

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