Jing Zhi Wong - Wong on Wills & Probate

Wong on Wills & Probate

Select topics on Wills and Probate in Australia

Work-in-progress, 7 July 2025

Succession Act 1981 (Qld) - Queensland Legislation: <https://www.legislation.qld.gov.au/view/html/inforce/current/act-1981-069>.

Succession Act 2006 (NSW) - NSW Legislation: <https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2006-080>.

Uniform Civil Procedure Rules 1999 - Queensland Legislation: <https://www.legislation.qld.gov.au/view/html/inforce/current/sl-1999-0111>.

Probate and Administration Act 1898 - NSW Legislation: <https://legislation.nsw.gov.au/view/html/inforce/current/act-1898-013>.

[A] Probate Jurisdiction

** The source and nature of probate jurisdiction, grants in common cf solemn forms - abuse of process: [102]-[130] et seq. [215]: "Descriptions of probate proceedings as "interest litigation" (and association of such descriptions with the concept of what it is to be a party to, or bound by, the outcome of probate proceedings) demonstrate the central focus of the probate jurisdiction on rights to property, governed by a law of succession that endeavours to respect decisions made by an autonomous property owner in anticipation of death, and post-death claims of family and community, the due administration of which is entrusted to judicial officers bound to act in accordance with the traditions of their office.": Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786.
"[30] A person may experience life and death without recourse to any form of proceedings in the Court, the services of which are available if required and the decisions of which inform the community’s understanding of the law. [31] Nevertheless in the course of an ordinary life and death a person may encounter, in turn, the protective, probate and family provision jurisdictions of the Court as incapacity for self management precedes death and succession to property.[32] The protective jurisdiction privileges the perspective of a vulnerable person, attending to both the welfare of “the person” and his or her “estate” (property). [33] The probate jurisdiction attends principally to the identification, collection, management and distribution of a deceased person’s estate, but it also accommodates “the person” in recognising the role an executor or administrator may play in management of funeral arrangements and in the appointment of a testamentary guardian for children. It aids an orderly transition of the affairs of a person, commencing with a focus on the testamentary intentions of the deceased and shifting to the entitlements of beneficiaries. [34] The family provision jurisdiction is available to moderate administration of a deceased person’s affairs in a case in which, viewed through the prism of a wise and just testator and community standards, adequate provision has not been made for the proper maintenance, education or advancement in life of a person to whom the deceased owed a duty to make testamentary provision. [35] Each branch of the Court’s jurisdiction is governed by the purpose for which it exists. The Court’s inherent jurisdiction to resolve a dispute about the disposal of a dead body is equally governed by its purpose.": Brown v Weidig [2023] NSWSC 281.
"I accept that the common law does not apply in the probate jurisdiction, and never did in this Court, or, it seems, in any other court in Australia exercising the probate jurisdiction conferred by the Charter of Justice 1823.": Korneef & Ors v Lewkowicz [2001] ACTSC 81, [5].
"15. The caveat procedure exists to ensure that estates are administered in an orderly manner and that any issues arising before a grant of representation is made can be investigated and dealt with by the Court. This ensures that any grant gives effect to the final valid testamentary wishes of the deceased or the intestacy provisions and title to any real or personal property owned by the deceased at the date of their death passes in accordance with these wishes or provisions. All participants in a proceeding must be mindful that the purpose of the probate jurisdiction is ensuring that the testamentary intentions of a deceased person are carried out and the beneficiaries receive what is due to them. ... 53. For a will to be admitted to probate, it must have been the free will of a testator. A will that has been the subject of undue influence, within the meaning recognised in the probate jurisdiction of the Court, is invalid.[24] An essential component of an allegation of testamentary undue influence is an allegation of fraudulent conduct. Although the assessment of whether there has been an inappropriate degree of influence is a nuanced one, for there to be testamentary undue influence in the eye of the law there must be coercion.[25] ": In the matter of the will of ANASTAZJA PRZYCHODSKI deceased [2016] VSC 781.

[B] Case Law List - Resources

'Succession Law: 2025 Accredited Specialist Assessment Guidelines' (Queensland Law Society, 2025) <https://www.qls.com.au/Content-Collections/Guidelines/2025-Succession-Law-assessment-guidelines>, archived at <https://perma.cc/WQH5-XJQR>.
'2025 Specialist Accreditation List of Case Law' (Law Society of WA, 2025) <https://lawsocietywa.asn.au/wp-content/uploads/2023/01/2025-List-of-Case-Law-Wills-and-Estates.pdf>, archived at <https://perma.cc/Y9L6-E4ZW>.

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