Section 6(1) of the Succession Act 2006 (the Act) provides that a will is not valid unless

(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and

(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and

(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

In Wehbe v Giotopoulos [2023] NSWSC 827 the deceased’s will failed to meet s6(1)(c) of the Act.

Background

George and Simon Wehbe (”the plaintiffs”) submitted that following their mother Wadad Wehbe’s (the Deceased) request to make a will to ensure that her husband’s wishes “that you and your brothers will inherit the estate were fulfilled” George purchased a will kit.

On 8 July 2020, George drafted a Will (”the will”) following the deceased’s instructions “using straightforward language and in capitals”. George is named as an executor in the will, with his brother Simon to act as executor if George was unable or unwilling to act or did not survive the deceased by 30 days. The plaintiffs and their brother Bashir were present as were two friends Anthony Sarkis and Mohamed Derbas.

The plaintiffs submitted that Anthony Sarkis was present when the deceased signed the will and that she treated him “like a son”. Mohamed Derbas was also a friend of the family, and close to the deceased, especially in her later years.

The matter

Marcha Giotopoulos, (”the defendant”), is one of the two daughters of the deceased. The defendant challenges the validity of the will and claims that as the deceased died intestate the estate is to be distributed to her children equally being the plaintiffs, the defendant, Bashir and the other daughter, Mary Naim. The only asset of the estate of significant monetary value is a three-bedroom residential property in Highclere Avenue, Punchbowl.

The plaintiffs sought a grant of probate concerning the will on 2 July 2021. However, the defendant filed a caveat on 8 July 2021. The plaintiffs commenced proceedings on 27 August 2021 when they filed a Statement of Claim seeking a grant of probate in solemn form concerning the will.

The defendant filed a Defence and a Cross-Claim, and later an Amended Defence and an Amended Cross-Claim, concerning the validity of the will seeking an order that administration of her mother’s estate be granted to either herself or a suitable independent administrator.

The defendant disputed the validity of the will based on

that

• the suspicious circumstances surrounding its preparation and execution and
• the deceased did not know and approve the contents of the will,

alternatively,

• that its execution was procured by the undue influence of the plaintiffs.

Although Anthony Sarkis and Mohamed Derbas were Attesting Witnesses who had made supporting affidavits. Although reasonable notice had been given for them to attend Court for cross-examination, neither did so. In those circumstances, the Court ruled that the plaintiffs could not use the supporting affidavits.

The decision

As no acceptable evidence was adduced, the apparent signatures of Anthony Sarkis and Mohamed Derbas are their signatures. Further, the Court held that there is little room for the operation of such a presumption concerning this relatively recent will where it has not been shown that the attesting witnesses are either dead or incapable of giving evidence.

In contested probate business the Court expects to hear the evidence of attesting witnesses or at least one of them, if available, and it is usual that the attesting witnesses give evidence viva voce and do not deal with attestation only on affidavit

Sullivan v Mouglalis; Wilson v Mouglalis – Estate Late Willem Wyma [2008] NSWSC 1326 at [11],

It follows from the above that the plaintiff’s application for a grant of probate in solemn form of the will fails and that the Statement of Claim must be dismissed. In those circumstances, and in the absence of any alternative application for probate, it is appropriate to make orders as sought in the Amended Cross-Claim, declaring that Wadad Wehbe died intestate, and ordering that a grant of administration of the intestate estate be made.

The Court rejected the plaintiffs’ submissions that the defendant “invited the proceedings”, “unnecessarily protracted the proceedings” and prosecuted the matter “solely for the purpose of increasing the costs recoverable”. Such allegations were not substantiated.

The Court ordered that given the dispute between the siblings, the grant of administration should be made in favour of a suitable independent administrator. In that regard, the defendant put forward Mr Andrew Fleming, solicitor, as a suitable candidate. Mr Fleming has given his consent to being appointed as the administrator of the estate. The plaintiffs did not suggest that Mr Fleming would not be a suitable administrator, and the Court accepted his affidavit demonstrating that he would be.

The Court subsequently made an order that the daughter’s costs be paid by the two sons who propounded the will and, to the extent they were not satisfied by the sons, the costs be paid from the sons’ share of the estate (Wehbe v Giotopoulos (No 2) [2023] NSWSC 934).