THE DOCTRINE OF “SUSPICIOUS CIRCUMSTANCES” IN PROBATE CASES

Date: Mar 26, 2013
Document Type: Article

The doctrine of suspicious circumstances was explained in the case of Vernon v Watson (2002) NSWSC.

The central question in the case was whether, and if so how, the validity of the will propounded by the plaintiffs was affected by the doctrine of probate law commonly referred to as the doctrine of suspicious circumstances which is described in cases as follows:

“... a person who is instrumental in the framing of the will, and who obtains a bounty by the rule, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards their legacy...”

“...there is a further onus upon those who take for their own benefit after having been instrumental in preparing or obtaining a will. They have thrown upon themselves the onus of showing the righteousness of the transaction”.

The burden imposed by the rule is the burden of removing the suspicion so as to show that the mind of the willmaker is indeed to be found reflected in the will that is propounded. Wherever a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the willmaker, the Court ought not to pronounce in favour of it unless that suspicion is removed.

The onus of proof is initially upon the party seeking to raise the ‘suspicious circumstances’ in which the will was prepared and/or executed.

Once a case of ‘suspicious circumstances’ has been suggested in a reasonable and not fanciful manner, the onus shifts to the party seeking to propound the will to dispel the suspicion.

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