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Revoking a Grant of Probate - Testamentary Capacity


In the Supreme Court of New South Wales case concerning In Estate Sue [2016], an application to revoke a Grant in Common Form was submitted. The grounds for the application centred on whether the Will that had been Granted Probate was invalid, because of a lack of testamentary capacity of the deceased at the time they made the Will. Testamentary capacity refers to the person making their Will, understanding the nature and effect of making their Will and that they were of sound mind at the time of making their Will.

The deceased had reduced the amount her daughter was to inherit as shown in an earlier Will and the Court investigated whether the deceased was suffering a delusional disorder at the time, of making her latest Will. The Court considered evidence left by the deceased explaining that her daughter was not a good daughter and the reason for reducing her inheritance. The Court then considered evidence from family and friends that the deceased had a difficult personality and the relationship between the deceased and her daughter, had been fraught with unpleasant confrontation since her daughter was 7 years old. In addition, medical evidence showed that the deceased had a well-established delusional disorder at the time of the making her latest Will.

The Court found that at the time the deceased made her latest Will she lacked testamentary capacity and revoked the Grant in Common Form allowing the deceased’s earlier Will to be accepted as the last valid Will of the deceased.

Identifying Beneficiaries in a Will - "The Benjamin Order"

In 1902 an executor was unable to find or identify a beneficiary of an estate. This case gave rise to the term “Benjamin Order”. In this case, the Court decreed that when an Executor is faced with uncertainty on who should be a beneficiary of an Estate, that Executor has the right to seek a declaration from the Court on who should benefit. Once this declaration is made the Executor is no longer liable if they distribute the Estate to who they believe are the correct beneficiaries, even if more entitled beneficiaries are subsequently discovered.

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Revoking a Grant of Probate - Testamentary Capacity

In the Supreme Court of New South Wales case concerning In Estate Sue [2016], an application to revoke a Grant in Common Form was submitted. The grounds for the application centred on whether the Will that had been Granted Probate was invalid, because of a lack of testamentary capacity of the deceased at the time they made the Will. Testamentary capacity refers to the person making their Will, understanding the nature and effect of making their Will and that they were of sound mind at the time of making their Will.

Continue Reading