Carrying the Burden: Testamentary Intention and Capacity

On 14 August 2019 the NSW Court of Appeal delivered a decision in Mekhail v Hana; Mekail v Hana [2019] NSWCA 197, which serves as a reminder of the principles surrounding testamentary capacity and intention.

The case involved the estate of the late Nadia Mekhail and the issues surrounding her will dated 12 December 2014. That will, which replaced an earlier 2001 will, gifted Ms Mekhail’s entire estate to a Ms Georgette Hana. Ms Mekhail’s nephews and former beneficiaries commenced proceedings firstly in the Supreme Court of NSW and thereafter appealed to the NSW Court of Appeal.

In considering the matter, the Court of Appeal gave significant consideration to what it described as “suspicious circumstances” surrounding the preparation and execution of Ms Mekhail’s will. These included the following facts:

Instructions to prepare a new will for Ms Mekhail were not provided by her but by Ms Hana’s son.

When Nadia attended upon a solicitor in 2014 to execute her will she was joined by Ms Hana.

Representations made by Ms Hana, or on her behalf, led the solicitor to erroneously believe that Ms Hana was Ms Mekhail’s daughter – which was later reflected in the drafting of her will.

The new will executed in 2014 represented a significant change from the previous will, excluding family members and the church without reason.

At the time that Ms Mekhail executed her will she also executed a power of attorney in favour of Ms Hana. This was used shortly thereafter by Ms Hana to transfer the residence of Ms Mekhail to herself.

The receipt of instructions and preparation of a new will was undertaken somewhat hurriedly on the basis that Ms Mekhail was then in hospital.

The Court relied heavily on prior authorities in placing the onus on Ms Hana to prove that the 2014 will properly reflected Ms Mekhail’s testamentary intentions. Particular regard was had for the judgment in Tobin v Ezekiel [47], which proved instructive:

Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person had the onus of showing the righteousness of the transaction…

…The cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters.

Considering the volume of evidence available, the Court expressed that it was “comfortably satisfied” that Ms Hana had not discharged the onus borne by her and, by consequence, it was held that the 2014 will should not be admitted to probate. Orders were subsequently made for Ms Mekhail’s estate to be administered on the basis of the 2011 will and for the property transferred by Ms Hana to herself prior to Ms Mekhail’s passing to be transferred back to the estate.

This case was heard over two weeks in the Supreme Court of NSW before progressing to the Court of Appeal. It represents significant cost to the parties involved and to the estate. It is a reminder of the issues that can arise when an individual executes a new will in circumstances in which testamentary capacity, duress or coercion can be raised. 


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