By Professor Prue Vines -
Snapshot
- Succession law in NSW is built on common law, equity and statute, with historical principles still influencing modern rules around wills and estates.
- Recent developments, like recognition of informal wills and cultural practices, and emerging issues, like digital assets and electronic wills, continue to challenge traditional concepts of property and testamentary freedom.
- This article takes a four-dimensional perspective, appraising the state of succession law by reference to its past, present and future.
The late Justice Powell, probate judge in NSW during the 1980s and ’90s (and later Judge in Appeal), was wont to complain that ‘modern practitioners’ often did not understand the basis of many issues in succession and, therefore, made mistakes. As his Honour said in one case:
‘Although this would seem to involve merely a pleading question, what is involved is, as it seems to me, a matter of substance in respect of which there is considerable misapprehension on the part of members of the legal profession, and, that being so, it seems to me that I ought, in this judgment to devote a little more time to considering the matter than one might do on a normal pleading application’ (Winter v Crichton (1991) 23 NSWLR 116 at 116).
That particular case concerned the doctrine of undue influence in probate, which the pleaders confused with undue influence in equity. Powell J explained their different origins and requirements. Undue influence is not presumed in probate, as it can be in equity, but must be proved by the person asserting it. Undue influence in probate generally requires influence at the level of force or coercion destroying free agency.
