Szabo & Associates News & Updates

In essence, there are three main grounds for disputing the validity of a Will. Firstly, where there is a lack of testamentary or mental capacity to give appropriate instructions. Secondly, where there is a lack of “knowledge and approval of the contents” even if there is sufficient mental capacity. And, thirdly, if there has been undue influence on the testator, or Will-maker, by an overbearing relative or adviser.

A Will can be challenged on a number of grounds, including the validity of the Will itself. One particular ground affecting validity is the lack of knowledge and approval of the contents of the Will. A Court will not grant probate if there is evidence to show that the contents of the Will were not known and approved by the testator or Will-maker.

Estate planning can sometimes be thought of as something for families. Parents usually want to protect what they have accumulated in their lifetimes for their children and find an efficient way of passing on their assets.

A life estate can play a useful role in estate planning. However, there are drawbacks that need careful assessment when considering whether one would be right for you.

The principle underpinning the NSW statutory provisions relating to this question can be traced at least as far back as England’s Wills Act of 1837. Rather than the gift lapsing, in essence, the principle states that if a parent leaves a gift to their child, where that child had died leaving children of their own, then those children (the grandchildren of the person making the Will in question) should receive the share that would have gone to the parent had the parent not died. That is unless a “contrary intention” was to be discerned from the Will.