SUCCESSION — Contested probate — Where deceased made wills in 2010 and 2015 — Where deceased’s son seeks a grant of probate for the 2010 will and challenges the validity of the 2015 will on the basis of lack of knowledge and approval and/or the undue influence of the deceased’s daughter — Where deceased’s daughter seeks a grant of probate of the 2015 will — Where deceased decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of her primary asset — Where daughter arranged for the witnesses to the deceased’s execution of the 2015 will — Where daughter, who expected to (and did) receive a substantial benefit under the 2015 will, remained in the room when the deceased’s 2015 will was made and executed — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether suspicious circumstances — Whether suspicion dispelled — Held: Deceased knew and approved the contents of the 2015 will
SUCCESSION — Contested probate — Undue influence — Where the son’s case of undue influence overlaps with the case as to lack of knowledge and approval — Where daughter did not arrange for the deceased to obtain independent legal advice in relation to 2015 will — History of the deceased declining to change her 2010 will when daughter protested as to perceived unfairness — Relevance of daughter’s 18-month estrangement from the deceased following the execution of the deceased’s 2010 — Where deceased later decided to change her 2010 will on the basis of what the deceased understood to be a significant increase in value of the primary asset of her estate — Where the deceased dictated the terms of her 2015 will and read those terms before signing — Whether the deceased was fearful of her daughter who was present during the making and execution of the 2015 will — Held: Son failed to establish that the deceased made the 2015 will under the undue influence of her daughter
CONTRACT — Testamentary contract — Deceased’s son alleges that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged representations not proved and testamentary contract claim fails
ESTOPPEL — Proprietary estoppel by encouragement — Where the deceased’s son claims that the deceased and her husband promised that a property in Coogee would eventually pass to him — Held: Alleged promises were not made and proprietary estoppel claim fails
Quick Take
1Where a beneficiary is present during the preparation and execution of a will, the resulting suspicion as to knowledge and approval may be slight and can be dispelled by evidence that the testator dictated the will's terms (referring to a pre-prepared document), read those terms before signing, and had independently decided to change the earlier will for a reason unconnected with the beneficiary's influence.
2A testator's demonstrated history of refusing to change their will in the face of a beneficiary's protests about unfairness is a strong indicator against undue influence, even where that beneficiary later arranged the witnesses and was present during execution of a new will that benefited them.
3Claims of testamentary contract and proprietary estoppel founded on oral promises allegedly made decades earlier fail where the alleged promises are unsupported by contemporaneous documents, are inconsistent with the testator's subsequent testamentary acts, and the claimant's recollection is inherently unreliable due to the passage of time.
Case Details
Citation[2026] NSWSC 900
CourtNSWSC
JurisdictionNew South Wales
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