XVQ v XVR and another

The plaintiff is the youngest of three sons of the deceased, and the defendant is the deceased's youngest sister, who has lived in Perth, Australia since 2005. The deceased, an independent businesswoman who ran a maid employment agency, died on 19 September 2021 after a fall at home. She had made wills in 2018 and 2019 and then, on 22 June 2020, executed a will prepared by a law firm (ALC). That will appointed the defendant as sole executrix, left the deceased's HDB flat to her second son, left $1.00 to each son, and gave the listed assets and the residue to the defendant. The 2019 will had left her property to her granddaughter P, the plaintiff's daughter, who had lived with her.

In FC/S 9/2023 the plaintiff sought to have the 2020 will declared invalid, alleging suspicious circumstances, a misrepresentation by the defendant that she would hold the estate on trust for the intended beneficiaries, and undue influence. The defendant counterclaimed for a declaration that the 2020 will was valid and that she was entitled to a grant of probate. Testamentary capacity was not disputed. After a trial, the District Judge dismissed the claim, and these grounds were issued because the plaintiff appealed against the whole decision.

1. Whether the 2020 will was duly executed in compliance with section 6 of the Wills Act 1838
2. Whether the deceased knew and approved of the contents of the 2020 will
3. Whether the will was prepared and executed under suspicious circumstances or on the faith of a misrepresentation by the defendant
4. Whether the deceased executed the will under the undue influence of the defendant

On execution, the attesting witnesses were not called, but the solicitor who drafted the will explained it to the deceased in English and saw her affix her left thumbprint before two witnesses, consistent with how the earlier wills were executed. The will was regular on its face and the formal requirements were met.

On knowledge and approval, the court found the will rational. Advice that a trust of the HDB flat for P until she turned 30 was not possible under HDB rules, and the deceased's concern that the plaintiff might otherwise manage the flat, explained the gift of the flat to her second son. Her earlier 2018 will had also left her other assets to the defendant, and all three wills left each son a nominal sum. She had legal advice and about four months to consider the terms.

On suspicious circumstances and misrepresentation, the defendant had recommended the firm and relayed documents and messages, but she waited outside while the deceased gave instructions, the deceased changed her instructions directly with the firm, and she executed the will alone while the defendant was in Australia. The evidence of P, the plaintiff's wife B, the solicitor Mr D and a friend K was inconsistent, largely hearsay, or contradicted by other evidence, and the nature of the alleged misrepresentation was never made clear. Claims about Australian properties were unsupported by documents.

On undue influence, which must be proved and amounts to coercion, the deceased was a strong-willed woman who lived and decided independently, and nothing showed that her will was overborne.

The court dismissed the plaintiff's claim and granted the defendant's counterclaim, declaring the 2020 will valid and declaring that the defendant was entitled to apply for a grant of probate under it. The plaintiff was later ordered to pay the costs of the action, assessed after a trial of several days with ten witnesses besides the parties. No finding was made on the validity of the 2019 will.