The Briginshaw principle is derived from obiter remarks of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; To be reasonably satisfied of a matter the Court may be affected by the
“seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations,which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”
Briginshaw v Briginshaw 60 CLR 336 at p362
Essentially more convincing evidence is necessary to meet the standard of proof where an allegation is particularly serious, or unlikely to have occurred. In a probate case, serious allegations may be made, involving fraud, manipulative conduct or the like reflecting the
“conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct”
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at 2
Pepper J stated that Briginshaw should be seen as a standard of satisfaction not as a standard of proof. The more serious the allegation, the more serious or anxious the consideration given by the decision maker to attain the necessary state of reasonable satisfaction or persuasion that the facts in dispute are more likely than not to exist.
In New South Wales, s 140(2) of the Evidence Act 1995 (NSW) reflects the Briginshaw principle providing a court with the factors it may consider in determining on the balance of probabilities it has been satisfied that a case has been proven. These factors include:
- the nature of the cause of action or defence;
- the nature of the subject-matter of the proceeding; and
- the gravity of the matters alleged.
This list is not exclusive and does not limit additional matters the court may also take into account when deciding whether the matter has been proven on the balance of probabilities.
Background
A few months before the deceased died in November 2019 – a day before her 90th birthday – she made Will (”the 2019 Will”) leaving her estate to four out of her five children in equal shares. A previous will, made in 2011, (”the 2011 Will”) had made significantly greater provision for the respondent. Neither Will made provision for an estranged daughter.
A translator read the 2019 Will to the Deceased in Mandarin in the presence of the solicitor who had drafted the Will. The deceased had confirmed her understanding and approval. At the deceased’s request three of her children, including the respondent, attended the conference (but were outside when instructions were taken); the proposed disposition was explained to those children before the deceased executed the 2019 Will – no one made any complaint as to its contents.
The 2019 will was admitted to probate; no family provision claim was made. In Lim v Lim [2022] NSWSC 454 the respondent submitted that the deceased lacked testamentary capacity and that she did not know or approve of the contents of the will.
The matter
In revoking the 2019 will in April 2022, and admitting the 2011 Will to probate in its place the NSW Supreme Court was critical of the file note taken by the solicitor which recorded that the deceased stated that if the estranged daughter made a family provision claim it was “for [the] children to sort out”. The primary judge held that this
“suggests that she may not have had the capacity to evaluate, and to discriminate between, the respective strengths of the claims of the persons with claims upon her bounty”
Lim v Lim [2023] NSWCA 84 at 399
A significant factor was the lack of an apparent reason for changing the amount paid to the respondent who (with his wife) had lived with and provided care for the deceased. Given the lack of evidence, it was
“difficult to conclude that the deceased had the capacity to give, any, or any real, considerations to the competing claims upon her bounty”.
Importantly the Court also emphasised that just because a Will appears rational or simple does not logically bear on whether the Deceased could comprehend, appreciate, or evaluate matters relating to making a Will. The Court also referred to the Briginshaw principle.
The Appeal
In Lim v Lim [2023] NSWCA 84 the executor – the Deceased’s other son – appealed the finding that the Deceased lacked testamentary capacity when she made her last will.
The Court of Appeal accepted that there was good reason to infer the deceased understood she had one asset of any significance and was determined to make a new will excluding one child and making equal provision for her other four children; despite being warned of possible family provision claims. Reflecting an awareness of the family members to be remembered in the will or excluded, and the reasons for the exclusion.
Additionally, the fact that the deceased’s proposed disposition was explained to her children, giving them a chance to object, before the will was executed – a chance the appellant did not take up – suggests that she understood the nature and importance of the choice she was making supporting the inference that the deceased had the ability to make purposeful decisions and appreciated the moral claims of potential beneficiaries.
Similarly, the medical evidence, suggested that the deceased had sufficient cognition to address these issues when making the 2019 Will. Neither the fact that Mandarin was not the deceased’s main language nor the fact that she was not wearing hearing aids despite her significant hearing impairment, suggest that she lacked capacity to properly understand what was occurring on that day: at [116]-[117]. For these reasons, the Court of Appeal was satisfied that the deceased had testamentary capacity when she made the 2019 Will.
In allowing the appeal the Court of Appeal ordered a grant of probate on the 2019 Will with the respondent to pay the appellant’s costs of the appeal.