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NECESSITIES OF A VALID WILL, formal requitrements, MIND MAP, Reading of…

- - - - s 6(1)(a) in writing and signed by testator (or in his presence and direction)
        
        animus testandi - signature of teststor must be made w/ intention of executing the will
        
        testator’s signature must be made with the intent
        of authenticating the will, regardless where it is placed on the will s (6)(2)
        
        s 6(1)(b) signed or acknowledged by testator in the presence of at least 2 witnesses
        
        s 6(1)(c) at least 2 of the witnesses to attest and sign in presence of testator (but not necessarily in presence of each other)
        
        prudent to draft an attestation clause to confirm requirements of s 6(1) Succession Act
        
        O/wise Grant of Probate more difficult to attain
        
        acknowledged - if already signed must have been seen. Signature acknowledged not document or will
        
        signed’ - wide meaning i.e initials, mark inc thumb print etc.
        
        'in writing'
        
        any mode of representing or reproducing words in visible form including printing, photography and typewriting
        
        Interpretation Act 1987 (NSW) s21(1)
  - - - informal Will
      - SA s 8(1) where a document, or part of a document, purports to state the testamentary intentions of the deceased and where the formal requirements not adhered to
        
        the document, or part of it, forms, alters or fully or partially revokes the deceased's will, if:
        
        s 8(2) the Court is satisfied by the evidence, on the balance of probabilities, that the person intended it so
        
        s 8(3) in satisfying itself the court may have regard to -- a) any evidence relating to the manner in which document was executed, and b) any evidence of the testamentary intentions of the deceased including evidence of statements
        
        the requisite intention requires that the deceased intend the document to form the will immediately and not on the occurance of a future event which has not occured - i.e where they have not executed the will when there was an opportunity to do so
        Rodney v Weisbord [2020] NSWCA 2
        
        document
        
        Any record of information including anything on which there is writing or marks, figures, symbols or perforations having a meaning; or anything from which sounds and images are produced or a map, plan, drawing or photograpgh
        Interpretation Act 1987 (NSW) s 21*
- - - - Suspicious circumstances must be removed by affirmative proof of knowledge and approval by propounder Nock v Austin
        
        Suspicious circumstances - Isaacs J Nock v Austin [1918] 25 CLR 519.
        the greater the degree of suspicion invoked in a particular case, the higher the onus will be on a proponent to remove the suspicion Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197
        
        Will prepared by beneficiary Fulton v Andrew
        
        Where testator enfeebled, illiterate or blind when document executed
        
        the exclusion of persons naturally having a claim on the testator’s bounty;
        
        Extent of proofwill vary with the circumstances of the case;Wintle v Nye [1959] 1 WLR 284
        
        any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995.
    - - UNDUE INFLUENCE
        
        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).
        
        Actual and effective coercion (as opposed to persuasion) must be proved - must be shown that a person had the power to force the testator to make the will in ceratin terms and used that power to that end.
        
        must be pleaded in detail and supported by full particulars
        
        To be proved by person making the case Boyse v Rossborough(1857) 6 HL Cas 2 at 49
        
        heavy burden
        
        2 more items...
        
        required to exclude all other hypothesis suggesting testator had a free mind Boyse v Rossborough [1857) 6 HLC 1
        
        Criticised in Victorian cases - Nicholson v Knaggs [2009] VSC 64, [110]-[138] (Vickery J)); Brown v Guss [2014] VSC 251, 33
      - FRAUD
        
        misleading or deceptive conduct Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] NSWCA 136.
        
        i.e decieving the testator as to beneficiaries true identifty, or about anothers conduct or forgery
  - - - Knowledge of what a will.is
        
        understanding of engagement in a testamentary act
      - Knowledge of extent of nature of property
        
        no need to recollect every item of property - general knowledge sufficient Kerr v Badran [49] Windeyer J
      - Capable of rble judgement as to competing moral claims of potential beneficiaries
        
        who are the natural objects of the testator’s bounty,
        
        sense of reason must not be perverted by mental illness
        
        more evidence required where will contoversial
        
        i.e where it excludes a prson who whould usually be considered likey yo be included
        
        testator must have the ability to evaluate and to discriminate between the respective strengths of these claims see -- Re Estate of Griffith; Easter v Griffith [1995]Gleeson CJ where testators judgement was not merely unfair but made as a product of mental disorser
        
        conflicts with
        
        freedom of testation principle -- see dissent of Kirby J --- argued testator was not affected by mental incapacity - courts must steadfastly resist the urge to rewrite wills of testators which they regard as unfair, unwise or harsh
      - Be free from insane delusions(at the time of execution) Bull v Fulton
        
        ‘a belief, which is not true to fact, which cannot be corrected by an appeal to reason, and which is out of harmony with the individual’s education and surroundings’ or ‘a fixed and incorrigible false belief which the victim could not be reasoned out of’.
        
        What is assessed is the extent, if any, to which a delusion existing at the time the testator made their will affected the testator’s ability to satisfy the tests as to testamentary capacity.
        
        may effect only a part of a will Estate of Cockell; Cole v Paisley
        
        severable -- Estate of Bohrmann
        
        Needham J in Woodhead v Perpetual Trustee Co Ltd TC indivisable - whole will invalid
        
        Only relevant if connected witht the dispositions of the will--- :relative connection between the delusion and provisions in the will must be proved for invalidity
    - - Evidence of a solicitors practice is admissible and cam be given significant weight --- determination of testamentary capacity is not a medical issue----
        Drivas v Jakopvic [2019]
- - - - chalenge to testamentry capacity
        
        prove on balane of probabilaities testamentay capacity by test in Banks v Goodfellow
        
        Otherwise Invalid
      - challenge to the claim that the testatir had knowledge and approved of contents or acted under undu influence or fraud
        
        affirmatively prove against suspicion of want of knowledge and approval of contents or prove undue influence or fraud