The recent decision of Justice Myers in Giann v Giannopoulos is yet another case dealing with the application of the law of minimum evidentiary threshold in will challenges.
This was a case in which two of the children of the deceased sought to challenge their father’s will. The Court considered whether the will challenge could proceed and Justice Myers, applying the recent decision of the Court of Appeal in Johnson v. Johnson, made the following observation as to his role:
The Court of Appeal was very clear that the preliminary vetting process is not to be confused with making findings of fact at trial. I am not considering if the applicants’ evidence is true. Rather, I am looking at whether the evidence that they adduce actually puts in issue the capacity of the deceased or is prima facie evidence of undue influence and, if so, whether the evidence of the respondents is a complete answer [emphasis added].
In this case, Justice Myers seemed to have little difficulty in concluding that the Applicants had not met the minimum evidentiary threshold required to proceed with the will challenge and have the will proved in solemn form. Allegations contained in the Applicant’s supporting affidavit were refuted or “successfully answered” by the Respondents and there was no evidence tendered by the Applicants in reply and no cross-examination of the Respondents. For Justice Myers, this latter fact was particularly compelling.
Moreover, spin is no substitute for evidence (a fact that His Honour reiterated yesterday in a “fireside chat” at the Estates and Trusts Summit). As Justice Myers put it:
I remind myself that in cases such as this, applicants can have little transparency into an abusive relationship with a gatekeeping attendant covering his or her tracks. But here, as discussed below, even the prima facie concerns, are just conjecture and mudslinging rather than actual evidence on which an inference can be drawn.…The smears against Ms. Papastefanou are unjustified in the evidence. The actual facts adduced offer no basis to find suspicious circumstances at play. As noted at the outset, the implication of wrongdoing by Ms. Papastefanou comes from the choice of words, adjectives, and spin rather than the actual admissible evidence.
Thanks for reading,