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A valid will must have, Banks v Goodfellow test is not a medical test of…

- - - - The definition of suspicious circumstances is set out by Isaacs J in Nock v Austin [1918] 25 CLR 519. The circumstance that a party who takes a benefit wrote, or prepared the Will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator’s appreciation and approval of the contents of the Will. Isaacs J in Nock v Austin [1918] 25 CLR 519
        
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        Fraud and Undue Influence ensure the testator does not have knowledge and approval of the Will
        
        Undue Influence - Testator must not be subject to coercion which overpowers the will of the testator.
        
        The onus of proof is on the person alleging undue influence. As well as proving the will was created as a result of undue influence the person must also exclude all other hypotheses suggesting the testator had a free mind, (Boyse v Rossborough [1857) 6 HLC 1).This creates a heavy burden of proof. If the person alleging undue influence is unsuccessful they are likely to bear the costs of the claim.
        
        It is necessary to establish that the testator was forced into making a will (or part of a will) that the testator did not want to make (Wingrove v Wingrove (1886) 11 PD 81).
        
        Fraud - Testator must not be under a deception or misled about facts to have knowledge and approval of their will. If a testator has been misled or deceived the will of the testator is invalid.
        
        'Fraud sufficient to result in the invalidation of a testamentary instrument, is concerned with misleading or deceptive conduct' Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] NSWCA 136
    - - Proof of testamentary capacity and due execution of the instrument creates an assumption that the testator knew and approved of the WIll as long as there are no suspicious circumstances. Nock v Austin [1918] 25 CLR 519 per Isaacs J.
        
        Knowledge and approval focuses on whether the deceased actually knows and understands the content of the document that is being executed as a Will and intends that those terms should be incorporated into, and given effect, by the Will. Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell [2019] NSWSC 583 per Hallen J.
        
        Effective evidence that the testator knew and approved of the Will is obtained by reading the Will out loud to the testator and pausing to explain any terms and their effects. Windeyer J in Robinson v Spratt [2002] NSWSC 426
    - - There are suspicious circumstances however 'the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.' Isaacs J in Nock v Austin [1918] 25 CLR 519.
        
        Where any such suspicious circumstances exist, the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved the contents of the document.
- - - - FORMAL REQUIREMENTS s6(1)(c) - at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).
      - FORMAL REQUIREMENTS s6(2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will.
      - FORMAL REQUIREMENTS s6(1)(b) - the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and
      - FORMAL REQUIREMENTS s6(1)(a) - it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and
    - - 2 key elements in the dispensing power are the document and evidence of the deceased's intention
        
        Document
        
        Section 8 SA applies to a document, or part of a document, that purports to state the testamentary intentions of a deceased person and does not comply with the formal requirements in ss6(1-2) SA
        
        For the purpose of Succession Act 2006 (NSW) s 8 the definition of document in the Interpretation Act 1987 (NSW) s 21 applies.
        
        "Document" means any record of information, and includes anything on which there is writing or Anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or ) a map, plan, drawing or photograph
        
        Examples of documents in the case law are; ;
        
        As a solicitor if a client produces any document that is testamentary in nature then the existence of that document must be disclosed in any application for a grant, McCann v McCann; Estate of Michael Robert McCann [2013] NSWSC 78.
        
        Intention
        
        The document, or part of the document, forms: the deceased person's will--if the Court is satisfied that the person intended it to form his or her will, or an alteration to the deceased person's will--if the Court is satisfied that the person intended it to form an alteration to his or her will, or a full or partial revocation of the deceased person's will--if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.
        
        In making a decision about the intention of the deceased the Court may, in addition to the document or part, have regard to: any evidence relating to the manner in which the document or part was executed, and any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
- - - - (a) There are 2 other witnesses who are not interested witnesses, or
      - (b) Everyone who would benefit from the gift being void consents in writing, or
      - (c) The Court is satisfied that the testator knew and approved of the disposition and it was given or made freely.