When a family fights over a will, a court decides the outcome — and the reasons it gives become the rules everyone else is judged by. These notes explain recent Australian decisions about wills and estates: what happened, what the court decided, and what it means if you are writing your own will.
Court judgments are written for lawyers. They are long, heavily cross-referenced, and assume you already know the legislation. That is a shame, because the useful part — the reason a will failed, or the reason a claim succeeded — is usually something an ordinary person can act on in an afternoon. That is the part we write about.
Almost every reported wills case falls into one of these categories. Knowing which is which makes the notes below much easier to follow.
By far the most common. Someone who was left out of a will, or left less than they expected, asks the court to rewrite the distribution on the basis that they were not adequately provided for. Adult children, spouses and de facto partners can all apply. This is the single biggest reason a will does not do what its author intended, and it is worth understanding before you decide to leave someone out. Our state guides set out who is eligible: see wills in New South Wales for the NSW position.
A challenge to whether the person understood what they were signing. Typically raised where a will was made late in life, after a dementia diagnosis, or shortly before death. The legal test is more forgiving than people assume — capacity is not all-or-nothing — but the evidence that decides these cases is usually the contemporaneous notes of whoever prepared the will.
An allegation that someone pressured the will-maker, or that the circumstances of the signing were irregular enough to require explanation. These cases turn heavily on the specific facts, and courts are careful to distinguish persuasion from pressure.
Documents that were meant to be a will but do not meet the formal signing requirements — a note, an unsent letter, an unwitnessed draft, sometimes a text message. Courts have a discretion to admit these, but it is a discretion, not a right, and the litigation costs usually dwarf the cost of doing it properly. See what happens if you die without a will for the alternative, and our state guides for the witness requirements that keep a will out of this category.
The will is valid, but nobody can agree what a clause means. Ambiguous wording, a beneficiary who died first, an asset that no longer exists, a gift described so loosely that two people both think it is theirs. Entirely avoidable, and entirely common.
Each note is our own analysis, not a reproduction of the judgment. We quote the court's own words where the exact wording matters, always with attribution and a link to the full judgment on AustLII and, where available, the relevant court's own website. If you need the authoritative text, follow those links — that is what they are there for.
We report findings as findings. Where a case involves allegations between family members, we describe what the court found or held, not what any party asserted. Where a court has restricted publication, or the parties are identified only by initials, we do not write about the case at all.
General information, not legal advice. These notes summarise and analyse court decisions for general interest. They are not advice about your situation, and succession law differs between states and territories. eQUILL is a document preparation service, not a law firm. If a case here looks like your circumstances, speak to a solicitor.