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Giving Evidence In A Contested Will Case (NSW)

When someone makes a claim against a deceased estate in New South Wales, they may have to file affidavits or even testify before a hearing of the Supreme Court. This can seem like a daunting prospect, especially as the court will make an assessment as to the credibility of the testimony. This article explains some common missteps to avoid when giving evidence in a contested will case through an examination of the Estate of the Late James Sundell [2019].

What Is A Contested Will Case?

Under the Succession Act 2006, an eligible person can dispute a testator’s will if they feel that they were unfairly left out of the will, or the provision that they were left was inadequate for their maintenance. Many such claims are settled pretrial through negotiation or mediation, but some proceed to a hearing before the Supreme Court.

In a contested will case, the hearing may include examination and cross-examination of individuals such as the executor of the estate, the claimant, and other beneficiaries. Barristers will usually conduct the examination, and each side will typically prepare their own witnesses prior to the hearing so that the witness knows what questions to expect. During cross-examination, the opposing barrister will typically attempt to damage the witness’s credibility, weaken the evidence provided in the witnesses’ affidavit, and obtain admissions that support the opposing case.

What to do when giving evidence in a contested will case

If you are going to be a witness in a contested will case, there are some things that you can do to demonstrate credibility to the court.

  • Listen carefully and make sure that you understand the question before answering;
  • Ask for clarification if you do not understand the question;
  • If you do not know the answer, or cannot remember, do not guess or make up an answer. Always take time to think before answering any question;
  • Answer in an audible voice;
  • Treat all parties in the court with respect, and address the judge as ‘Your Honour’;
  • Review your affidavit or other documents prior to the hearing to refresh your memory; and
  • Locate any contemporaneous material that can support your recollection of events (such as letters, emails, receipts or diary notes).

Estate of the Late James Sundell 

In the Estate of the Late James Sundell [2019], the case revolved around the validity of informal annotations to a will. The plaintiff in the case was the son of the testator. Under the original terms of the will, the son would inherit full ownership of a family business. The amendments to the will would leave the son only a part share of the business, but the son argued that these amendments were meaningless notes made in an effort to mislead the Family Court in an unrelated case.

The Supreme Court found the plaintiff to be an unsatisfactory witness for several reasons. The court described his claim as “unattractive”, and found his story about the amendments being a ruse to deceive the Family Court as “implausible” and “entirely fabricated”. The court found that the “blatant and ruthless dishonesty” the plaintiff attributed to his father did not align with his reputation as an honest man. The court also pointed out that the deceased never revoked or changed the will after the Family Court proceedings concluded, despite undergoing a risky operation soon after the case that might have resulted in his death. If the amendments to the will were only made in furtherance of a scheme to deceive the Family Court, presumably the deceased would have ensured that the will was updated to reflect his true intentions.

The evidence of the other executor, who was a long-standing business associate of the deceased was found to be highly credible. The court found it extremely significant that counsel for the plaintiff never asked Wooldridge during cross-examination to substantiate the claims that the deceased was involved in the scheme to mislead the Family Court. The court believed the evidence of the deceased’s widow when she refuted the plaintiff’s claims, despite the fact that she sometimes struggled to recollect events and was at times “vague and unsure”. The court also accepted the evidence of the daughter of the deceased, describing her as a “truthful and thoughtful witness”. The court drew particular attention to the fact that the daughter instructed counsel the day after her testimony to correct a mistake she made in her cross-examination testimony. As this correction was slightly adverse to her case, the court found this to be compelling evidence of her honesty.

The court ultimately dismissed the plaintiff’s argument because there was too much evidence and material to contradict his version of events. Most importantly, the court found that the credibility of the plaintiff was poor in comparison to other witnesses, who were considered honest and credible. The will was probated to include the handwritten changes.

An experienced solicitor can guide you through giving evidence in a contested will case. Please contact our specialist contested wills team today to discuss making a claim against an estate, or call 1300 038 223 to discuss any legal matter.

Dr Nicola Bowes

This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

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