Contesting a will influenced by delusions of witchcraft – presumption of validity and suspicious circumstances

When a will meets formal legal requirements, it benefits from a powerful presumption of validity. However, this safeguard is not absolute. In cases where suspicious circumstances arise or evidence suggests a lack of testamentary capacity, the courts may intervene to set a will aside.

The recent case of Diedler v Borowiec [No 2] [2023] WASC 396 underscores this reality, demonstrating how deeply held delusions can undermine even a formally valid will. This case serves as a compelling reminder that the law demands more than procedural compliance—it requires true testamentary intent.

When a will is formally valid under section 8 of the Wills Act, it is subject to three key presumptions:

• Presumption of due execution
• Presumption of testamentary capacity
• Presumption of knowledge and approval of contents

Background

The case involved a challenge to the validity of Jan Grzeczny’s 2018 will after his death in 2018. The plaintiffs, Joachim and Maria-Luise Diedler, sought to uphold the will, while the defendants, Teresa Borowiec (his daughter) and Richard Goode (his stepson), argued it was invalid due to the deceased’s lack of testamentary capacity from delusions. The 2018 will, which excluded his biological children, left much of his estate to the plaintiffs, prompting the defendants to claim mental impairment affected his decisions.

Presumption of Due Execution

A will is presumed to be duly executed if it is signed by the testator in the presence of two independent witnesses who are not beneficiaries. This presumption stands unless there is evidence to suggest that the formalities were not followed.

For instance, in Hassold v Hassold [2018] SASC 68, the court upheld the presumption of due execution even though the identity of one of the witnesses could not be verified. The court considered factors such as the presence of a professional drafting the will and the retention of the will by the Public Trustee, which indicated due execution.

Presumption of Testamentary Capacity

A properly executed will raises the presumption that the testator had testamentary capacity. However, if there is evidence to the contrary, the burden shifts to the party propounding the will to prove capacity on the balance of probabilities.

Dielder v Borowiec – Testamentary Capacity and Delusions

In Diedler v Borowiec, the plaintiffs sought to uphold the 2018 will of Jan Grzeczny, arguing that he had testamentary capacity. The defendants contended that the testator suffered from delusions, which poisoned his affections towards them and influenced his testamentary dispositions.

Justice Whitby found that although Grzeczny understood the nature and effect of the will and the extent of his property, he harboured delusions that his daughter was a witch practising sorcery and that his stepson had attempted to poison him. These delusions directly influenced his decision to exclude them from his will. As a result, the court ruled that Grzeczny lacked testamentary capacity, and the 2018 will was deemed invalid.

This case reinforces the four criteria established in Banks v Goodfellow (1870) LR 5 QB 549 for testamentary capacity:

1. The testator must understand the nature and effect of the will.
2. The testator must understand the extent of their property.
3. The testator must comprehend and appreciate the claims they ought to consider.
4. The testator must not suffer from a disorder of the mind that influences their testamentary dispositions.

Since Grzeczny’s delusions directly impacted his decision-making, the fourth requirement was not met, rendering his will invalid.

Presumption of Knowledge and Approval

If a will is duly executed and the testator had capacity, it is presumed that the testator knew and approved of its contents. However, suspicious circumstances can rebut this presumption.

In Roebuck v Smoje [2000] WASC 312, the testator’s impaired hearing and eyesight raised concerns about their ability to understand the will. However, medical evidence confirmed their intelligence and strong character, supporting the presumption of knowledge and approval.

Suspicious Circumstances

Suspicious circumstances arise when there are factors suggesting that the testator may not have fully understood or approved the will. Examples include:

• The involvement of a beneficiary in drafting the will (Nock v Austin).
• A sudden change in beneficiaries.
• The testator’s vulnerability due to age, illness, or dependency.
• The use of an intermediary to convey instructions.
• When such circumstances exist, the burden shifts to the party propounding the will to prove that the testator knew and approved its contents.

Conclusion

Diedler v Borowiec is a pivotal case in wills and probate law, highlighting that while the presumption of validity offers an initial protection, it remains open to challenge. Courts will scrutinise wills where there is evidence of delusions, undue influence, or other suspicious circumstances to ensure that the testator’s true intentions are upheld. The case reinforces the importance of medical assessments and legal oversight in cases where mental capacity may be questioned, ensuring that testamentary decisions are free from irrational influences.

If you require assistance or advice in relation to Wills, do not hesitate to contact Iain Freeman or Kerri Evangelista.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.