It is not uncommon for a Will to be put forward as being a person’s last record of their testamentary intentions only for it to be challenged by an aggrieved beneficiary (or someone who, in their opinion, should have been a beneficiary).
These disputes often take the form of an application under Chapter 3 of the Succession Act on the basis that the testator did not make adequate provision for a particular person, or because there are unresolved questions as to the testator’s testamentary capacity to provide instructions in relation to the Will, or their ability to execute it.
In other cases, an aggrieved (or interested) party brings an application requiring another party to prove the contents of a Will in solemn form on the basis of ‘suspicious circumstances’.
Plaintiffs seeking to challenge a person’s testamentary capacity (for example) have a high bar to satisfy as they will generally have the onus of proof to positively establish that at the relevant times the testator did not have the requisite knowledge and approval of the will. Experience tells us this can be very difficult to prove.
However, if a plaintiff can show that there are ‘suspicious circumstances’ surrounding the drafting and execution of a Will, the Doctrine of Suspicious Circumstances will, in effect, cause the onus of proof to shift to the party/ies propounding the Will.
In this article we consider the recent matter of Victor Chang Cardiac Research Institute Limited v Robin Slipper (the ‘Tully Proceedings’) in which the Doctrine of Suspicious Circumstances was successfully relied upon.
In this matter, proceedings were commenced in the Supreme Court of Queensland on behalf of the plaintiff (Victor Chang Cardiac Research Institute Limited (‘VCCRI’)) requiring the executor to prove in solemn form the Will of the late Paul Matthew Tully (‘the Deceased‘) (‘the Estate‘), of which VCCRI was a beneficiary.
Specifically, VCCRI alleged that the circumstances in which the subject Will was prepared invoked the Doctrine of Suspicious Circumstances and lead to an apprehension that the will did not reflect the testamentary intentions of the deceased and/or the deceased did not have testamentary capacity at the relevant times.
The circumstances leading up to the Tully Proceedings are peculiar: the executor of the Deceased’s estate was the Deceased’s former solicitor Mr Robin Slipper. Prior to the commencement of the Tully Proceedings, Mr Slipper had (without the knowledge of VCCRI) successfully obtained a grant of probate in relation to the estate in common form and taken steps to administer the Estate.
The Will that was the subject of that grant was executed in 2011. Relevantly, a previous Will executed in 2006 bequeathed, in effect, the Deceased’s entire estate to VCCRI. The only material difference from the 2006 Will was that the 2011 Will included a substantial cash gift to Ms Bignell, an employee of Mr Slipper, the solicitor who drafted the Will.
Ms Bignell was not known to the family of the Deceased and the Will excluded all of the Deceased’s children. There was no explanation provided by the Deceased in his Will, nor was there a memorandum of wishes or any other document explaining the reason for the contents of the Will.
It was also alleged, and ultimately by Mr Slipper, that his conduct was in breach of rule 10.2 of the Legal Profession (Solicitors) Rule 2007 (QLD), which provides that a solicitor is prohibited from (among other things) drawing a Will in which a solicitor’s associate (such as an employee) will or may receive a substantial benefit.
On advice, VCCRI took the view that these matters were sufficient to invoke the Doctrine and the Mr Slipper was subsequently put to proof to positively show that the Deceased knew and approved of the Will.
Mr Slipper defended the proceedings on the basis that he asserted exerted no pressure on the deceased in relation to the 2011 Will, that Ms Bignell had no involvement in and no knowledge of the 2011 Will and that the 2011 Will reflected the testamentary instructions of the deceased and that the deceased had testamentary capacity.
VCCRI relied upon the Doctrine of Suspicious Circumstances in requiring the executor of the Estate to prove that the Deceased knew and approved the contents of the Will.
The Doctrine has been the subject of significant judicial comment and application historically. One of the leading decisions on this issue is Burchett AJ’s decision in Vernon v Watson; Estate Clarice Isabel Quigley dec’d  NSWSC 600, wherein his Honour reviewed the development of the doctrine. It can be identified from Burchett AJ’s analysis that the majority of decisions dealing with the Doctrine of Suspicious Circumstances consider the issue in circumstances where a person who benefits under the will had been instrumental in the procuring of the will: In re Nickson, deceased  VLR 274 at 281; Baker v Batt (1838) 2 Moore 317 at 321; Atter v Atkinson (1869) LR 1 P & D 665 at 668; Fulton v Andrew (1875) LR 7 HL 448 at 469-470 and In re Breen  VLR 164 at 166.
However, as discussed by Burchett AJ in Vernon v Watson (considering the judgment of Lindley LJ in Tyrell v Painton) the Doctrine
“… extends to all cases in which circumstances exist which excite the suspicion of the Court; and where such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document”.
Invariably, disputes that arise in relation to this issue (as well as others) have a propensity to arise when a Will is executed in short proximity to a person’s death and in circumstances where the contents of a person’s Will are unexpected. Equally, these issues often arise where a testator or testatrix acts (in a person’s view) harshly or unfairly in benefiting one person over another.
However, the authorities make it plain that a curious or unexpected Will is insufficient to raise the necessary level of suspicion. For example, the observations of Isaacs J in Nock v Austin suggest that the mere fact that a testator has not benefited family members but rather benefited others is not enough per se to create suspicion. Furthermore, Gleeson CJ in Re Estate of Griffith (deceased); Easter v Griffith said:
“…Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.”
Ultimately, Mr Slipper, on behalf of the estate, settled the proceedings.
McCabes acted for VCCRI at every stage of the proceedings and secured a settlement of the proceedings at an early stage of the proceeding avoiding considerable legal costs and delays (to VCCRI and the Estate).
McCabes has extensive experience in trust, succession and estate matters, ranging from application for grant of probate to complex litigation involving the administration of estate including recovery of estate assets, competing priorities amongst creditors and beneficiaries, and duties of trustee.
McCabes is also able to assist in estate planning, and help you put in place a succession strategy that meets your needs.
This article is not legal advice. It is intended to provide commentary and general information only. Access to this article does not entitle you to rely on it as legal advice. You should obtain formal legal advice specific to your own situation. Please contact us if you require advice on matters covered by this article.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.