SUCCESSION — Contested probate — Testamentary capacity — Where will executed by the deceased in 2023 gave the deceased’s entire estate to the plaintiff — Where the deceased’s previous wills had made no gift to the plaintiff and had given all or most of her estate to charities — Where the terms of the 2023 will were inconsistent with the deceased’s intention expressed to the plaintiff that she would leave him her house — Whether the 2023 will was rational on its face — Whether the deceased had testamentary capacity to make the 2023 will, which was in simple terms — Held: The deceased had testamentary capacity to make the 2023 will.
SUCCESSION — Contested probate — Knowledge and approval — Where the plaintiff was instrumental in the preparation and execution of the 2023 will — Where the plaintiff took the entirety of the deceased’s estate under the 2023 will, but had never been a named beneficiary of the deceased’s estate in her previous wills — Where the solicitor who prepared the 2023 will took instructions from the plaintiff and had no communication with the deceased — Where the 2023 will departed from the deceased’s previous wills which had given all or most or her estate to charities — Where the deceased was physically frail and legally blind — Where the solicitor who prepared the 2023 will left it to the plaintiff to make arrangements for the deceased to execute the will — Where the deceased executed the will in the presence of two associates of the plaintiff who were not previously known to her in a very short meeting during which they read the will the aloud to her and she signed it immediately afterwards — Where the terms of the will read to and signed by the deceased were inconsistent with the intention she had expressed to the plaintiff to leave him her house — Whether there were suspicious circumstances — Whether the suspicion was dispelled — Held: The will was signed in suspicious circumstances and the plaintiff failed to discharge his onus of proving that the deceased knew and approved the contents of the will.
Quick Take
1Where a will beneficiary is instrumental in its preparation, the solicitor takes no instructions from the testator, and the will's terms depart from the testator's expressed intention to the beneficiary, a strong suspicion arises that the will does not reflect the testator's true will — reading the document aloud in a brief meeting with strangers is insufficient to dispel that suspicion
2A will that departs from a testator's longstanding testamentary pattern and from the specific intention expressed to the beneficiary is not rational on its face, displacing the presumption of testamentary capacity, but capacity may still be established on the evidence where the will is simple and the testator's cognitive abilities are broadly intact
3Evidence of conversations recalled many years later by witnesses who never met the person about whom they give evidence carries little weight, particularly where the witness's recollection is demonstrably unreliable on verifiable details
Case Details
Citation[2026] NSWSC 951
CourtNSWSC
JurisdictionNew South Wales
Unlock so much more with Barrister AI
The full text is available to signed-in members, including the 1 later case that cites this judgment.
