Mekhail v Hana; Mekail v Hana

The proceedings concerned a contested grant of probate and an application for provision from an estate. The primary dispute revolved around the validity of a will dated 12 December 2014, which left the entirety of the deceased's estate to Ms Georgette Hana, the proponent of that will. The appellant challenged the grant of probate of this will, arguing that suspicious circumstances surrounding its execution meant the proponent had not discharged the onus of proving its validity. The Court of Appeal of New South Wales was required to determine whether the primary judge erred in admitting the 2014 will to probate.

The court was tasked with considering the suspicious circumstances surrounding the 2014 will, particularly the erroneous beliefs of the solicitor who explained and witnessed the will. These beliefs, that the proponent was the testatrix's only daughter and next of kin, were found to have been induced by lies from those benefiting under the will. The court had to assess whether the proponent had discharged the onus of proving the will's validity in light of these circumstances and whether the approach in *Gill v Woodall* was applicable. Additionally, the court considered whether the primary judge erred in failing to find the nephew dependent on the deceased and in failing to make primary findings on the nephew's financial position and need, despite dependency being conceded at trial.

The Court of Appeal found that the solicitor's evidence could not be relied upon to discharge the onus of proof due to the solicitor's erroneous beliefs, which were caused by deception. The court emphasised the need to consider the entirety of the suspicious circumstances. Consequently, the appeal was allowed, the grant of probate of the 2014 will was set aside, and probate in solemn form of an earlier will dated 27 March 2001 was granted to the New South Wales Trustee & Guardian. The matter was remitted to the Probate Registrar to complete the grant, with directions for the parties to provide short minutes of order regarding the South Strathfield property and costs.