John Baird died 80 years old in January 2022, leaving behind Helen – his wife of 50 years – son Matthew and daughter Kristine.

Kristine and husband Richard van Ruiten applied for probate of the will John made only 9 days before his death, in which they feature as executors and Kristine is the sole beneficiary, other than for some specific minor gifts to others.

iStock 1390262209Helen – who had been left out altogether – filed a caveat against the will claiming John had lacked the legal capacity to make the January 2022 will and did not know and approve of its contents.

It differed markedly from his previous will – made just 2 years earlier – in which he had left everything to Helen, or if she died before him, then to both children equally.

John was hospitalized in the weeks before his death receiving treatment for advanced cancer. Doctors had told Helen his condition was terminal and he was unlikely to leave hospital.

He was though, discharged on Christmas eve into the care of daughter Kristine for a few days.

Consistent with the very poor relationship between the pair, Kristine sent her step-mother a text message that day: “Dad learnt you have been scheming behind his back”, she wrote. “You have spent large sums of money without consulting him. He never wants to see you or Matthew again”.

Kristine also notified by SMS that John had signed a Power of Attorney appointing her as sole attorney and that John was aware Helen had been seeking legal advice regarding family law matters and for a fight over his will.

With husband Richard, Kristine applied for the removal of Helen’s caveat and her challenge to their probate application arguing the new will spoke for itself in that it was made in circumstances where John had decided to separate from Helen and had in fact met with a family law solicitor in early January to discuss his legal position.

Kristine went further. She even commenced family law proceedings against Helen in John’s name as his litigation guardian. Those proceedings have not yet been concluded.

The family law solicitor and his colleague who prepared the will – both of whom knew John well – attested to him having been alert, well oriented and capable of giving detailed instructions.

Despite these persuasive arguments, Justice Peter Gorton concluded – because of John’s precipitous state of health and the potential for undue influence from Kristine – his decision to leave his spouse and radically change his will could not be accepted at face value.

His illness was after all one that potentially compromised his mental function but there was no medical evidence either way as to his capacity – or of lack of it – to make a will.

Helen denied taking funds from John or that either one of them were considering separation. Hospital records confirmed her regular attendance on John there despite Kristine’s attempts to bar her.

Evidence revealed Kristine had in fact approached the solicitor to ask for a new will and Power of Attorney to be prepared.

It was also disclosed that the solicitor only discussed the new will with the deceased very briefly by phone before sending it to Kristine for John to review. It was signed without any further discussion, raising the suggestion that John may not have known and approved of its terms, as is required.

Also of note was that Kristine’s role as John’s role as litigation guardian in the family court proceedings – filed only days after the will was made – was premised on his lack of legal capacity.

Justice Gorton dismissed Richard and Kristine’s attempts to remove Helen’s caveat concluding an expensive court hearing was required to determine all issues notwithstanding the assets in the estate were only in the order of some $200,000.

The matter now proceeds to a full hearing in the Victorian Supreme Court to determine whether John had the capacity to make the will and did so in the terms expressed in the absence of undue influence.

Re Baird [2024] VSC 74 Gorton J, 28 February 2024