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The message is clear: when undertaking a legal transaction, use a qualified interpreter or translator when language is an issue
Solicitor Con Fabiatos witnessed Antonios Theodoulou’s will. The execution clause contained a recital that the will was read to the testator in “Greek being the customary language understood by him and the Willmaker appeared to thoroughly understand the same and approved the contents thereof”.
After his death, an issue arose as to Theodoulou’s testamentary capacity, knowledge and approval of the will and the existence of testamentary undue influence.
The solicitor deposed to understanding Greek but the Court observed that he hadn’t deposed to any formal qualifications in the Greek language, translating or interpreting. The Court noted that the testator spoke Cypriot Greek. It stated that
‘[t]he translation of a will into a language in which the testator is not fluent, or which is not his native dialect, supports a prima facie case that the deceased did not know and approve of the last will’ (Re Theodoulou [2018] VSC 601, [43]).
These comments are a reminder that when assisting a client in making a will by translating its contents, in circumstances where there is no formal training in translation, there is an increased risk of a successful challenge to the validity of the will.
Another instance of the same problem is Li v Choi [2020] QCA 131. The solicitor prepared Xin Li’s will on instructions from Li’s friend Doris Choi. Li was in hospital. The instructions were given in English and the will was written in English. Li did not speak any substantial amount of English. When the solicitor, Nicole Lloyd, and Choi attended Li that night with the will, the discussion between Choi and Lloyd took place in English. The discussion between Li and Choi took place in Mandarin, a language Lloyd didn’t speak.
The draft will left Li’s estate equally to his 2 daughters and his 2 sisters. Li said that he wasn’t decided about the division of the estate between the beneficiaries. He wanted the word ‘equally’ deleted. The word was crossed out and the change initialled. However there was no discussion that the deletion of the word would not impact the distribution of the estate; it would be the same even with the word removed.
The court found that Li had not understood or approved that the document provided for an equal distribution to the named beneficiaries. It is not hard to imagine a different outcome if the solicitor had spoken the testator’s language or a qualified translator had been engaged.
The preferable approach is that adopted in Sreckovic v Sreckovic [2018] NSWSC 1597 where a testator’s statement of explanation for omitting her daughter from her will was translated by a Serbian speaking interpreter.
