Szabo & Associates News & Updates

When a person makes a Will, or changes an existing one, they have to understand what they are doing for it to be valid. This is the essence of testamentary capacity. For a century and a half, the benchmark test for having the mental capacity to make a valid Will, in common law jurisdictions such as NSW, has been based on the nineteenth-century English case Banks v Goodfellow (1870). Banks concerned an individual who suffered delusions but whose Will was held to be valid because the delusions did not interfere with his ability to comprehend what he was doing when he made his Will.

Courts are generally deferential to a Will-makers choice of executor. However, the Court will "pass over" a named executor if it believes there are reasonable grounds to do so. The overarching consideration is whether the conduct of the executor(s) threatens the proper administration of an estate.

What might a widow be worth? This question was considered in the recent NSW Court of Appeal case of Steinmetz v Shannon (2019) NSWCA 114. The case stands as a reminder of the factors the Court will take into account when reviewing the adequacy of financial provision for a widow under the terms of a Will.

An Executor is the person who is responsible for carrying out a deceased's wishes as set out in their Will. When a Will has been made but did not appoint an Executor, the Court will instead appoint an administrator to carry out the terms of the Will.

As important as it is, there's more to estate planning than having a Will. A properly drafted Will, by an experienced practitioner, is the best way to meet legal requirements and minimise the chances of any disputes arising that might result in a contested Will.