Re: the Estate of Iris McLaren; Mariconte v Nobarani

[2015] NSWSC 667

Supreme Court of NSW

Built by Barristers,
For Australian Law.

1. Wills, Probate and Administration
2. › probate - application for grant of probate in solemn form
3. › where will executed apparently correctly and regularly
4. › whether deceased had testamentary capacity to make will
5. › whether deceased had requisite testamentary intention
6. › whether deceased had knowledge and approval of the will
1. Civil Procedure
2. › litigant in person
3. › construction of court documents where prepared by litigant in person
4. › whether the Court should adjust the rights of the parties where litigants in person appear before it

Where a will is rational on its face and attested in the manner prescribed by law, it is presumed to have been made by a person of competent understanding; a defendant challenging validity must adduce credible evidence to counterbalance that presumption, and on the facts here no such evidence was adduced.
A court dealing with a litigant in person must be even-handed and will construe their pleadings and evidence generously to identify the issues raised, but will not adjust the substantive rights of the parties or grant procedural indulgences (such as adjournments) that would not be available to a represented party.
A caveator in probate proceedings must demonstrate a relevant interest — that their rights will or may be affected by the grant opposed — and a beneficiary under a prior will satisfies that requirement.