KMWL Market Report

Elder Law & Succession part 2

Written by: KP Carmody & Co


Allegation of testamentary fraud

The court in The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250 (Henry J) granted probate in solemn form of the deceased’s last will after rejecting allegations of lack of testamentary capacity and the existence of testamentary fraud.

The allegation of testamentary fraud is relatively rare and is the analysis of that issue which is dealt with in this note. The Court observed that ‘[t]he making of a false representation to a testator which has a direct effect on the making of a will, such as by inducing a testator to make their will in a particular way, may be equivalent to positive fraud and may render invalid the will made’ (at [172]). The deceased’s son alleged that his sister falsely or recklessly misrepresented that the deceased had provided the son with a house, and that was relied on by the deceased when making his last will.

The Court was satisfied that the representation was the deceased long-held belief. “Merely accepting and repeating the deceased’s own long-held views cannot…. give rise to a wilfully false or fraudulent statement that was purposefully practiced on the deceased in order to gain benefits to herself under the will’ (at [178]). Further, the Court was not satisfied that there was a causal link between the statement and the deceased’s decision to exclude his son from his will (at [180]).

The Court was not satisfied that the daughter’s failure to check whether the father’s statement was true amounted to reckless conduct (at [181]). Lastly, it was not persuaded there was a basis to infer the representation was made by the daughter with a design to raise a prejudice in the mind of the deceased against his son for her benefit, or that it could in fact do so (at [183]). The advice in this article is general in nature and you should consult your solicitor for specific advice.

KP Carmody – Target

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