Lewis v Lewis

(2021) 105 NSWLR 487; [2021] NSWCA 168

NSW Court of Appeal

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Interrogate

Catchwords

1. Succession
2. › Contested probate
3. › Knowledge and approval
4. › Suspicious circumstances
5. › Whether reading will aloud to capable testator who executes it invariably discharges onus on propounder
6. › Whether necessary to establish knowledge of effect of will or merely knowledge of contents
7. › Succession Act 2006 (NSW)
1. Succession
2. › Contested probate
3. › Knowledge and approval
4. › Mistake doctrine
5. › Historical power of probate court to correct mistakes by omitting words from grant
6. › Significance of statutory power to rectify wills
7. › Succession Act 2006 (NSW), ss 27, 31-39
1. Succession
2. › Contested probate
3. › Severance of testamentary instruments
4. › Power to admit only those clauses to probate of which testator shown to have known and approved
5. › Distinction between omitted clauses conferring bequests and omitted clauses conferring powers
6. › Osborne v Smith (1960) 105 CLR 153 considered and explained
1. Practice and Procedure
2. › Subpoenas
3. › Production of documents
4. › Redaction of parts of documents on ground of relevance
5. › Distinction between redaction for privilege and redaction for relevance

Quick Take

Reading a will aloud to a capable testator who executes it will not invariably discharge the onus of establishing knowledge and approval where suspicious circumstances exist; in complex cases, particularly where a beneficiary has drafted the will, it is necessary to demonstrate the testator appreciated the effect of the will, not merely its contents.