Julie Ann Nicholson & Ors v Timothy Peter Knaggs & Ors

[2009] VSC 64

Supreme Court of Victoria

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Succession Law
2. › Wills
3. › Testamentary capacity
4. › Elderly person with disabilities
5. › Dementia
6. › Whether testatrix had sound mind, memory and understanding at time of giving instructions and executing will
7. › Banks v Goodfellow test
1. Succession Law
2. › Wills
3. › Undue influence
4. › Testamentary undue influence distinguished from equitable undue influence
5. › Standard of proof
6. › Whether conduct amounting to coercion established
7. › Circumstantial evidence
8. › Whether Boyse v Rossborough and Craig v Lamoureux correctly state the standard of proof
1. Succession Law
2. › Wills
3. › Knowledge and approval
4. › Suspicious circumstances
5. › Elderly testatrix with dementia
6. › Whether adequate steps taken to ensure testatrix understood contents of will
7. › Onus on propounder where suspicious circumstances established
1. Succession Law
2. › Wills
3. › Severance
4. › Whether court exercising probate jurisdiction may sever provision procured by undue influence
5. › Whether severance alters sense of remaining provisions

Quick Take

The standard of proof for testamentary undue influence is the ordinary civil standard on the balance of probabilities with the Briginshaw qualification, not the higher standard suggested by Boyse v Rossborough and Craig v Lamoureux. A court exercising probate jurisdiction may sever a provision procured by undue influence and admit the remainder to probate, provided the severance does not alter the sense of the remaining provisions. Solicitors taking instructions from elderly clients should obtain medical certificates as to testamentary capacity, conduct appropriately detailed interviews, and ensure the client can explain the effect of the will in their own words rather than merely assenting to questions.