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Time to move on? A new test for knowledge and approval

Justice Leeming has commented that whilst Australia is relying upon nineteenth century English decisions, England has in fact moved on and it might be preferable for NSW law to do the same.  He has offered a “preferred approach” of a “single stage test” in a situation where a challenge is made to a Will on the basis that the testator did not understand and approve of its contents.  In his judgment in Mekhail v Hana [2019] NSWCA 197 he notes the extra curial remarks of Justice Lindsay that in the circumstances of a single Judge hearing the primary evidence on Affidavit, a Judge is capable of absorbing all of the evidence and is capable of drawing whatever inferences may be available from that evidence.  The two stage test of first asking whether suspicious circumstances excite the Court and then requiring those who propound the Will to allay the suspicions can carry with it the possibility of judicial error.  Justice Leeming noted that in the absence of argument before him, he could not express a concluded view on the approach and also noted his preferred approach was not without critics.  Justice Emmett in agreeing with Justice Leeming chose not to comment. However, Justice Basten indicated his agreement with the preferred approach. We are therefore poised for a ‘suspicious circumstances’ case to attempt to argue for the preferred approach.  For those wishing to challenge a Will, so long as the suspicious circumstances are compelling, there is arguably a greater chance of success if they do.

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