Australia: Contesting wills - Insight from Power v Smart (2018) WASC 168

Last Updated: 11 August 2018
Article by Ann Spencer and Jonathan O'Connor

In Power v Smart (2018) WASC 168, the daughters of the late Mrs Okle, who had dementia and severely impaired vision and hearing, unsuccessfully disputed the validity of their late mother's will. The case demonstrates the type of evidence required to contest a will and the high threshold which must be met in order to succeed.

Factual background

Irene Okle passed away in August 2013 at the age of 93, leaving behind two children, five grandchildren and eight great grandchildren. Two years earlier Mrs Okle had executed a will while she was a resident at an aged care facility (the 2011 Will).

The 2011 Will appointed two of her grandchildren as the executors (Robyn and Michael), and left her entire estate to her 8 great grandchildren. In 2016 Robyn and Michael commenced proceedings in the Supreme Court to formally pronounce the force and validity of the 2011 Will.

Mrs Okle's daughters, Susan and Ainslie, opposed the proceedings. They claimed that the 2011 Will was invalid because at the time Mrs Okle made that will, she:

  • lacked testamentary capacity;
  • did not know and approve its contents; and
  • was prevented by the undue influence of the first plaintiff from exercising her free will.

Susan and Ainslie sought to prove an earlier will signed by Mrs Okle in February 1998. In that will she left the majority of her estate to Susan, with the residuary to be shared between her and Ainslie.

Numerous witnesses gave evidence at trial, including the solicitor who prepared the 2011 Will and 3 doctors.


Testamentary capacity

Testamentary capacity is the ability of a testator (or will-maker) to make a valid will. If a will appears to be valid and has been properly executed (signed by the testator and two witnesses), a testator is presumed to have testamentary capacity. To challenge that presumption, a party must put forward evidence which raises suspicion that the testator did not have capacity. If that suspicion is raised, the onus reverts to the party trying to prove the will, that is, they must prove the testator had the required capacity.

Amongst other things, Susan and Ainslie relied on the following circumstances in support of their allegation that Mrs Okle lacked testamentary capacity. They argued that Mrs Okle:

  • was almost totally blind and had a very significant hearing impairment;
  • had suffered impaired cognition since 2006;
  • had suffered dementia since 2010; and
  • leading up to her execution of the 2011 Will, acted out of character, including that she experienced periods of severe depression, suicidal thoughts and exhibited rude and aggressive behaviour towards her family and neighbours, and presented with worsening states of confusion and forgetfulness.

Ahead of trial, Robyn and Michael accepted that these physical and cognitive impairments raised a suspicion that Mrs Okle did not have testamentary capacity and that the onus was on them to prove that she did.

There was an abundance of medical and lay evidence presented at trial but the evidence of the solicitor who had assisted Mrs Okle in the preparation of her will was of particular significance. He recalled that Mrs Okle's instructions to him at their first meeting were clear and coherent. They included instructions to:

  • incorporate a declaration setting out why she was not leaving the estate to her daughters; and
  • stipulate that only her biological great grandchildren were to benefit from her estate.

His Honour Justice Derrick was of the view that Mrs Okle's instructions to reference her "biological" grandchildren was significant as it revealed that she had an understanding of that clause in the 2011 Will and that she knew she was excluding her grandchildren from her will.

Despite Mrs Okle's dementia diagnosis, His Honour was satisfied that she had testamentary capacity at the time of executing the 2011 Will. His Honour came to this conclusion as Mrs Okle:

  • understood the act of making the 2011 Will and its effects;
  • understood the extent of the property which was disposing of by her will; and
  • was able to comprehend and appreciate the potential claims on her estate by her daughters and grandchildren by leaving them out of the 2011 Will.

Knowledge and approval

For the court to declare a will valid, it must also be satisfied that the testator knew and approved the contents of their will. As with testamentary capacity, there is a presumption that if a will appears to be valid and has been properly executed, the testator knew and approved its contents. That presumption can also be displaced by suspicion, in which case it is on the party seeking to prove the will, to show that the testator knew and approved the contents of their will.

Susan and Ainslie claimed their mother did not know and approve of the contents of the 2011 Will because (amongst other things):

  • after Mrs Okle had her first meeting with her solicitor in July 2011, she told her GP (who was assessing her capacity) that she wished to leave all of her assets to her great granddaughter Bethany;
  • the 2011 Will constituted a significant change to beneficiaries as compared to her previous will, including that 6 of the 8 eligible beneficiaries were children of Robyn and Michael; and
  • Robyn did not disclose the details of the 2011 Will to Susan and Ainslie until over two years after Mrs Okle died.

Ultimately the above facts did not persuade His Honour. He found that at the time of executing the 2011 Will, Mrs Okle knew and approved of its contents.

Undue influence

Susan and Ainslie alleged that the circumstances surrounding Mrs Okle's execution of the 2011 Will warranted a finding that she was not able to exercise her free will because of undue influence from her granddaughter Robyn. Robyn arranged Mrs Okle's meeting with the solicitor to take her will instructions and was present for some parts of the their first meeting.

His Honour was not satisfied that Mrs Okle was prevented from exercising her free will when she made the 2011 Will in September 2011 which was some two months after the first meeting. He specifically referred to the important fact that Robyn was not present when the 2011 Will was executed.

In His Honour's reasons he also said while the 2011 Will appeared "irrational" in that she excluded two generations of potential beneficiaries, there was also evidence to show that Mrs Okle had good reason to do so, including that in her mind, she had already sufficiently provided for her daughters.


After a 4-day trial in April 2018, His Honour:

  • pronounced the force and validity of the 2011 Will and ordered that a grant of probate be issued to Robyn and Michael as the executors; and
  • ordered that Robyn and Michael's costs of the action were to be paid out of Mrs Okle's estate on an indemnity basis to ensure that Robyn and Michael were not left out of pocket for fulfilling their role as executors.

His Honour recently refused to make an order that Susan and Ainslie could have their costs paid by the estate and also declined an application to make them pay the executors' costs: Power v Smart [2018] WASC 168(S).

Do you wish to challenge a will?

Notwithstanding a medical diagnosis of dementia a year before Mrs Okle executed the 2011 Will, other physical impediments and behavioural issues, the 2011 Will was still found to be valid. The case shows that there is a high threshold to reach in order to challenge the validity of a will and it demonstrates the Court's general reluctance to alter or revoke a testator's wishes.

Parties in contested estate matters often assume that their costs will be paid from the estate – as Susan and Ainslie found out, this will not always happen.

If a close family member of yours has died and you are suspicious of their will, do not delay and seek legal advice as to whether you can challenge the will's validity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ann Spencer
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