By Darryl Browne -
Snapshot
- A will’s essential validity may be challenged where the testator lacked knowledge and approval, or where the will was procured by undue influence or fraud.
- This article, the second in a two‑part series, examines these subsidiary issues and the circumstances in which presumptions may be displaced.
- It considers the practical implications for solicitors, particularly where suspicious or urgent circumstances attend the preparation and execution of a will.
While testamentary capacity is central to the assessment of a will’s essential validity, it is not the only issue that arises. A will may be challenged where the testator did not know and approve its contents, or where the will was procured by undue influence or fraud. Recent decisions illustrate how courts approach these questions in practice.
Knowledge and approval
Unlike the three other subsidiary issues, the second subsidiary issue, knowledge and approval, does not have an analogue to essential validity for inter vivos transactions. As explained in Lewis v Lewis [2021] NSWCA 168 (‘Lewis’) (Leeming JA; Meagher and Payne JJA agreeing), this is because the requirement that a testator know and approve the contents and effect of their will arose from procedural rules of court adopted in England and Wales in 1866.
It is important ‘that it can be said that the will contains the real intention and reflects the true will of the testator’ (Tobin v Ezekiel [2012] NSWCA 285 (at [47]) (‘Tobin’) (Meagher JA; Basten and Campbell JJA agreeing)). This means the testator must know and approve ‘the gravamen of the will’ but it is not necessary that the testator appreciates the legal effect of every word or clause in the will (Peacock v Knox [2025] NSWCA 160 (at [214]) (Ward P; Adamson and Ball JJA agreeing)).
