Challenging the ‘essential validity’ of a will
This article was published in the Retirement & Estate Planning Bulletin, October 2021, Vol 22. No. 7&8. Pages 54 - 60
A will is vulnerable to challenge on a number of bases. It may be challenged on the basis that it does not provide ‘adequate provision for the proper maintenance, education or advancement in life of the person’ (otherwise known as a family provision claim). It may be challenged on the grounds of formal validity, which is directed to the question of whether the will has been duly executed in accordance with the formalities prescribed by s 6 of the Succession Act 2006 (NSW) (although, it is worth noting that the Court may dispense with these formalities in certain circumstances).
This article, however, is concerned with the manner in which a will may be challenged on grounds of ‘essential validity’. Essential validity is concerned with the mental elements going to the making of a will and is directed to the question of whether the will, in substance, is the last will of a free and capable testator. Essential validity will be established if, on the balance of probabilities and ‘on the balance of the whole of the evidence’, the Court is satisfied that at the time of execution of the will, the testator:
intended to make a will (animus testandi);
had testamentary capacity, determined by reference to the test famously expounded by Cockburn LCJ in Banks v Goodfellow;
knew and approved the contents of the will; and
Who may attack the essential validity for a will?
A person only has standing to participate in proceedings concerning the essential validity of the will of a deceased person if he or she has an interest in the deceased’s estate. For this reason, probate litigation is usually referred to as ‘interest litigation’ and ‘is not to be undertaken or interfered in by outside busybodies.’ Generally, as Windeyer J observed in Poulos v Pellicer, ‘any interest or reasonable possibility of an interest, however remote, will be sufficient to entitle a person to become a party.’ It is also clear following the unanimous decision of the High Court in Nobarani v Mariconte that it is ‘legally erroneous to conclude that rights of low monetary value cannot amount to a legal interest’. Simply put, a person will have a sufficient interest to oppose a grant if he or she has a right which will be affected by the grant.
Accordingly, the cases illustrate, for example, that the following persons do not have a sufficient interest to oppose a grant of probate on grounds of essential validity:
a beneficiary under an earlier will, unless he or she is a beneficiary under the will immediately preceding the one being propounded;
a person who is the next of kin of the deceased (such as a spouse or even de facto spouse), unless he or she would otherwise be entitled on intestacy in the event that the particular will in question is found to be invalid. Such person will not have an interest, of course, in circumstances where there is a will anterior to the particular will in question which is unchallenged, which disposes of the whole of the testator’s estate and which would take effect if the revocation clause part of the will under attack is not effective;
a creditor of the estate, since the creditor’s interest is in the estate and not in the grant in question;
a person with a derivative interest in the estate in question, such as where his or her ultimate interest is by way of expected devolution through an intermediate estate; and
a person eligible to make a claim for a family provision order under chapter 3 of the Succession Act 2006 (NSW).
Challenging essential validity
As a preliminary step to challenging the essential validity of a will, a person with a sufficient interest (see above) may lodge a caveat in the registry of the Court, the effect of which is to stay all proceedings seeking probate, administration or resealing, except upon notice to that person. Faced with a caveat, the person who has sought probate or administration can either wait six months for the caveat to lapse (although the caveator may then file a further caveat), make an application seeking an order that the caveat cease to be in force or file a statement of claim naming the caveator as the defendant.
Confronted with an application for an order that the caveat cease to be in force, the caveator will be expected to be able to meet the following test as was succinctly put by Hallen J in Vea & Katalinic v Katalinic:
...The appropriate test for determining whether a caveat should cease to be in force is whether, on the material before the Court, there is evidence that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, and there are circumstances that warrant investigation as would reasonably require the matter to proceed as a fully contested suit before the Court should consider making a grant of probate in respect of the will (a doubt as to whether the grant of probate or administration should be made).
In broad terms, therefore, the caveator will need to establish evidence that he or she had an interest to support the caveat and that he or she had a prima facie case of a ground of invalidity upon which he or she relied. In default of the caveator providing such evidence, the Court may order that the caveat cease to be in force with the costs of the application being paid by the caveator. If the caveat remains in force, the case will generally proceed on a contentious basis, necessitating the applicant for probate of the impugned will filing a statement of claim naming the caveator as the defendant. The caveator may, in turn, file a statement of cross-claim seeking probate of a different will (usually an earlier will) which he or she says should be admitted to probate instead.
Once contentious proceedings are underway, the probate court is concerned with ascertaining what (if anything) was the last true will of a free and capable testator. To this point, Norris J noted in Wharton v Bancroft that ‘[t]he focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process.’ In this regard, the Court’s enquiry is conducted in such a way as to involve what Lindsay J described in Re Estates Brooker-Pain and Soulos as a ‘unique combination of principles relating to the (legal) onus of proof and a shifting (evidentiary) onus arising from the “presumptions” of fact associated with procedural steps customarily taken in the process of execution of a formal will.’ These principles were compendiously set out by Powell J in Re Hodges; Shorter v Hodges, and are examined below.
Raising a prima facie case
The propounder of a will bears the legal onus of proving its essential validity. This legal onus remains on the propounder of the will at all times. The first step towards discharging this onus is to establish a ‘prima facie case’. A prima facie case is one which ‘having regard to the circumstances so far established by the proponent’s testimony, satisfies the court judicially that the will propounded is the last will of a free and capable testator.’ A prima facie case will typically be established where the will is shown to be rational on its face and duly executed.
Testamentary intention and testamentary capacity
Upon having established a prima facie case, an evidentiary presumption is raised that the testator intended to make a will and had testamentary capacity at the time of its execution. The contradictor (the person seeking to impugn the essential validity of the will in question) may displace this presumption by adducing evidence of circumstances which raise doubt as to the existence of testamentary capacity. Evidence of such circumstances serve to shift the evidential burden to the propounder to affirmatively prove testamentary capacity on the balance of probabilities.
Testamentary capacity is decided by reference to the classic formulation of the test in Banks v Goodfellow, which was recently stated in more modern language by McMillan J in Re Jones in the following terms:
[T]o prove a testator had testamentary capacity, the Court must be satisfied that the testator:
(a) understood the effect of making a will;
(b) was aware of the general nature and value of the estate;
(c) was aware of those who would have a natural claim to the estate; and
(d) was able to evaluate and discriminate between such claims.
A helpful and comprehensive survey of the law in relation to testamentary capacity was recently carried out by Hallen J in Starr v Miller; who, having done so, observed that the question of capacity should be treated as a practical one which ought not be confined solely to medical, or legal, definition. Hallen J posited that it is also a question of degree to be determined on the facts and circumstances of each case.
Knowledge and approval
Upon the propounder having proven due execution and testamentary capacity, ‘a further presumption arises that the testator knew and approved the contents of the will.’ The concept of knowledge and approval is distinct from testamentary capacity and must not be conflated with it. Basically, knowing and approving the contents of the will means that the will needs to have reflected the testator’s testamentary intentions. The presumption of knowledge and approval referred to above may be rebutted by showing evidence of circumstances which create “a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator”. Hallen J in Petrovski v Nasev gave an illuminating insight into some of the factors which might be relevant to determinig whether the preparation of the will is attended by suspicious circumstances:
When considering whether circumstances that excite suspicion exist, the court looks at a number of factors including the circumstances surrounding the preparation of the propounded will; whether a beneficiary was instrumental in the preparation of the propounded will; the extent of the physical and mental impairment, if any, of the deceased; whether the will in question constitutes a significant change from a prior will; and whether the propounded will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded will is not a reason for rebutting the presumption arising from the due execution of a will regular on its face.
Thus, a suspicion will generally arise, for example, if the person who prepared, or procured the execution of, the will receives a benefit under it; or, if the testator was enfeebled, illiterate or blind when he or she executed it.
If the presumption of knowledge and approval is rebutted by evidence of circumstances arousing suspicion, then the onus shifts to the propounder of the will to dispel that suspicion and prove that the testator knew and approved of the contents of the will. Evidence that the testator gave instructions for the will or that it was read over by or to the testator has been said to be “the most satisfactory evidence” of actual knowledge of the contents of the will. In this regard, the question has often been framed as whether the testator knew what was written in the document when he or she executed it.
However, the Court is also concerned with whether the testator comprehended the effect of what he or she was doing. In this regard, the following passage of Chadwick LJ in Hoff v Atherton is often cited to illustrate this point:
A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs.
A similar sentiment was expressed by Lindsay J recently in Estate Rofe:
To establish a testator’s knowledge and approval of the contents of a will, it is not necessary to establish that he or she understood each and every clause of the will. It is sufficient to establish that the testator understood the practical effect of the central clauses in the instrument, including the dispositions of property effected by the will and implications for the estate of the appointment of those who are to administer it.
Indeed, in the wake of the recent Court of Appeal decision of Lewis v Lewis, it is clear that the question of knowledge and approval is one of fact and degree that cannot always be answered simply by showing that the testator’s will was read out to him or her at the relevant time. In that case, Leeming JA (with whom Meagher and Payne JA agreed) went to the source of the doctrine and proceeded to unravel its long history, finding that it is not the law that a capable testator is taken to have known and approved a will merely because it was read out loud to him or her. To this point, Leeming JA went on to opine that there is no ‘single tick-a-box rule’: the issue of knowledge and approval is an evidentiary one that is dependent upon the strength of the suspicious circumstances which arise in a particular case; and, that ‘in some cases in order to discharge the onus it will be necessary to establish knowledge and approval of the effect of the will.’ Each suspicious circumstance or doubt which is raised must be allayed by the proponent of the will. However, what is sufficient in each case to dispel the relevant doubt or suspicion will vary with the circumstances of the case.
Fraud or undue influence
As is apparent from the foregoing analysis, circumstances suggesting fraud or undue influence may excite suspicion such as to displace the presumption of knowledge and approval and operate to put the propounder to proof as to that suspicion. If, however, the contradictor wishes to specifically allege undue influence or fraud, the onus is on him or her to prove it and to sufficiently particularise the allegation. Accordingly, for strategic reasons, it is more common to put the propounder to proof of a will, perhaps by raising the issue of suspicious circumstances, than to allege fraud or undue influence. Another reason is that when the propounder is put to proof, costs will often end up being paid out of the estate, whereas when fraud or undue influence is unsuccessfully alleged, costs are likely to be borne by those who made the allegation.
Undue influence in probate law connotes coercion, so that ‘[w]hat is required to be proved is actual ‘coercion’ of the mind so as to produce an act contrary to the will of the testator.’ This proposition is borne out in the following jury direction given by Sir James Wilde in Hall v Hall, in what has been described as ‘the classic description of undue influence’:
To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, — these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else's.
Fraud, on the other hand, is a fundamentally different concept to undue influence. It embraces a wide category of conduct affecting testamentary disposition and essentially involves deception or misrepresentation inducing the testator to make his or her will in a particular way. Fraud capable of invalidating a will may include, for example, ‘wilfully false statements, or the suppression of material facts, intended, either, to gain for oneself benefits under a will, or to prevent others being received by a natural object of the testator’s bounty’.
Where it is sought to prove undue influence by direct evidence of coercion, the question to be answered is simply whether the will of the deceased was overborne to the requisite degree, by the conduct of the influencer. Direct evidence of coercion, however, is uncommon, since ‘[i]t is the nature of undue influence that it goes on when no-one is looking’. In most cases, undue influence will be sought to be proven on circumstantial evidence. In such cases, the following statement in Boyse v Rossborough has been influential:
...“in order to set aside a will of a person of sound mind it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of it having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.”
The effect of this particular standard of proof is that undue influence must, on the balance of probabilities, be the only possible explanation for the existence of the will:
In the context of civil proceedings, it is of course not necessary that the circumstances admit of no rational hypothesis inconsistent with undue influence; but undue influence must more probably than not be the true explanation.
More recently, in Blendell v Byrne, Hallen J noted that:
the standard of proof that must be met by the Defendants is as set out in Brown v Guss  VSC 251 per McMillan J, at :
“…The party alleging undue influence must show that the circumstances attending to the execution of the will are inconsistent with the will having been obtained other than by undue influence. The standard to which they must show the circumstances are so is on the balance of probabilities. If all they are able to prove is that undue influence and a lack thereof are equally likely, they have not proved their case. They must instead show that on balance, the hypothesis that the testator has been unduly influenced must be more likely than the contrary.”
The standard of proof for probate undue influence emanating from Boyse v Rossborough was criticized by Vickery J in Nicholson v Knaggs as imposing a test more stringent than not only the civil standard of proof, but also the criminal standard. Vickery J instead favoured a more liberal test:
The test to be applied may be simply stated: in cases where testamentary undue influence is alleged and where the Court is called upon to draw an inference from circumstantial evidence in favour of what is alleged, in order to be satisfied that the allegation has been made out, the Court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged than not, after the evidence on the question has been evaluated as a whole.
Whilst in theory this more liberal formulation of the standard of proof applied in Nicholson v Knaggs would make undue influence easier to prove in circumstantial cases, the formulation appears not to have yet been wholeheartedly embraced and awaits further authority.
A challenge to the essential validity of a will, in essence, calls into question the mental elements going to the making of a will. As has been laid bare in the foregoing discussion, essential validity is conventionally determined by reference to whether the testator in fact intended to make a will, whether he or she had testamentary capacity at the relevant time, whether he or she knew and approved of the will and whether he or she was unduly influenced or induced by fraud to make the will. A challenge to a will on one or more of these grounds requires one to be able to show that he or she has the necessary sufficiency of interest in the estate. It also requires cognizance of the legal onus of proof in respect to the testamentary instrument to be impugned and the shifting evidentiary onuses arising from the various presumptions. Ultimately, the focus is on whether a particular will is the last will of a free and capable testator and ‘it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents’. Probate actions have a tendency to become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost.
Contributing Partner: Gerard Basha
 Succession Act 2006 (NSW) s 59, see generally ch 3.
 See Succession Act 2006 (NSW) s 6.
 See Succession Act 2006 (NSW) s 8.
 Estate Rofe  NSWSC 257 (12 April 2021)  (Lindsay J); Gooley v Gooley  NSWSC 56 (12 February 2021)  (Sackar J); Weiss v Weiss  NSWSC 1064 (14 August 2020)  (Hallen J); Nicholson v Knaggs  VSC 64 (27 February 2009)  (Vickery J); Tobin v Ezekiel  NSWSC 81 (1 March 2011)  (Brereton J); Tobin v Ezekiel  NSWCA 285 (13 September 2012)  (Meagher JA); Re Estates Brooker-Pain and Soulos  NSWSC 671 (28 June 2019) (k); see also Supreme Court of New South Wales, Probate List Guidelines (Version 2, 28 January 2020) .
 Evidence Act 1995 (NSW) s 140.
 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 704 (Powell J).
 Not being a minor. See Succession Act 2006 (NSW) ss 5 and 16 the combined effect of which is that a will made by a minor is invalid unless authorised by the court; see also Minors (Property and Contracts) Act 1970 (NSW) s 9; Interpretation Act 1987 (NSW) s 21(1).
 Whyte v Pollok (1881) 7 App Cas 400, 405 (Lord Selbourne LC).
 Banks v Goodfellow (1870) LR 5 QB 549, 565 (Cockburn LCJ); for recent restatements of the test, see Carr v Homersham  NSWCA 65 (3 April 2018)  (Basten JA); Read v Carmody  NSWCA 182 (23 July 1998) 1–2 (Powell JA); Smart v Power  WASCA 106 (2 August 2019) ; for a discussion of the application of the test in contemproary times see Kerr v Badran  NSWSC 735 (17 August 2004) – (Windeyer J); Hayley Bennett, 'M’Naghten’s Trial (1843), Banks v Goodfellow (1870), and the neurobiology of intellectual and moral functions: Progenitors of the common law principles for determining testamentary capacity today' (2020) 48 Australian Bar Review 113.
 Nock v Austin (1918) 25 CLR 519, 528 (Isaac J); Hobhouse v Macarthur-Onslow  NSWSC 1831 (16 December 2016) – (Robb J); Bracher v Jones  NSWSC 1024 (5 August 2020)  (Robb J); Battenberg v Phillips  NSWSC 19 (30 January 2020) – (Henry J) affd Battenberg v Phillips  NSWCA 249 (9 October 2020).
 Veall v Veall (2015) 46 VR 123, 185  (Santamaria JA); Trustee for the Salvation Army (NSW) Property Trust v Becker  NSWCA 136 (15 June 2007)  (Ipp JA); see generally Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (Thomson Reuters, 2nd ed, 2020) [SA.4.270]–[SA.4.300].
 Tobin v Ezekiel  NSWSC 81 (1 March 2011) ; G E Dal Pont and K F Mackie, Law of Succession (LexisNexis Butterworths, 2nd ed, 2017) 68.
 Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631, 634; In re Devoy; Fitzgerald & Pender v Fitzgerald  St R Qd 137.
 Poulos v Pellicer In the Estate of Culina  NSWSC 504 (11 June 2004) ; see also Vea & Katalinic v Katalinic  NSWSC 805 (26 June 2020) ; Re Estate Condon; Battenberg v Phillips  NSWSC 1813 (21 December 2017) ; Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631, 634.
 Poulos v Pellicer In the Estate of Culina  NSWSC 504 (11 June 2004) ; see also Gardiner v Hughes (2017) 54 VR 394, 417 .
 Nobarani v Mariconte (2018) 265 CLR 236, 251 .
 In re Devoy; Fitzgerald & Pender v Fitzgerald  St R Qd 137, 145.
 Les Handler, Richard Neal and Michael Handler, Mason and Handler Succession Law and Practice NSW (LexisNexis, at 25 August 2021) [1677.4] citing Re Isaacs  ALR (CN) 605.
 In re Devoy; Fitzgerald & Pender v Fitzgerald  St R Qd 137; Les Handler, Richard Neal and Michael Handler, Mason and Handler Succession Law and Practice NSW (LexisNexis, at 25 August 2021) [1677.4] citing Munro v Power (NSWCA, 17 June 1976, unreported).
 In re Devoy; Fitzgerald & Pender v Fitzgerald  St R Qd 137, 146; Menzies v Pulbrook (1841) 163 ER 605; Poulos v Pellicer In the Estate of Culina  NSWSC 504 (11 June 2004) .
 Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631, 634; Poulos v Pellicer In the Estate of Culina  NSWSC 504 (11 June 2004)  and the authorities cited therein.
 Probate and Administration Act 1898 (NSW) s 144; Supreme Court Rules 1970 (NSW) pt 78 r 66, see also rr 67, 68.
 Supreme Court Rules 1970 (NSW) pt 78 r 69
 Supreme Court Rules 1970 (NSW) pt 78 r 71.
 Supreme Court Rules 1970 (NSW) pt 78 r 72
 Vea & Katalinic v Katalinic  NSWSC 805 (26 June 2020) 
 Vea & Katalinic v Katalinic  NSWSC 805 (26 June 2020) , ; Nobarani v Mariconte (2018) 265 CLR 236, 250 
 Wharton v Bancroft & Ors (Rev 1)  EWHC 3250 (Ch) (08 December 2011) .
 Re Estates Brooker-Pain and Soulos  NSWSC 671 (28 June 2019) .
 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 704–7.
 Bailey v Bailey (1924) 34 CLR 558, 570 (Isaacs J); Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 704; Tobin v Ezekiel  NSWCA 285 (13 September 2012)  (Meagher JA).
 Gerovich v Gerovich  WASC 77 (19 March 2021) .
 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 704.
 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 704; Tobin v Ezekiel  NSWCA 285 (13 September 2012) .
 Veall v Veall (2015) 46 VR 123, 174 ; Tobin v Ezekiel  NSWCA 285 (13 September 2012) .
 Battenberg v Phillips  NSWSC 19 (30 January 2020) ; Tobin v Ezekiel  NSWCA 285 (13 September 2012) 
 Banks v Goodfellow (1870) LR 5 QB 549, 565.
 Re Jones  VSC 273 (17 May 2021); see also Re Massey (deceased)  QSC 205 (10 August 2021)  (North J).
 Starr v Miller  NSWSC 426 (6 May 2021) –.
 Starr v Miller  NSWSC 426 (6 May 2021) .
 Veall v Veall (2015) 46 VR 123, 174 .
 Hoff v Atherton  EWCA Civ 1554 (19 November 2004)  (Gibson LJ),  (Chadwick LJ).
 Re Jones  VSC 273 (17 May 2021) ; see also Estate Rofe  NSWSC 257 (12 April 2021) (b).
 Tobin v Ezekiel  NSWCA 285 (13 September 2012) ; in relation to the circumstances which may excite suspicion, see Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 705; Petrovski v Nasev  NSWSC 1275 (17 November 2011) ; Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (Thomson Reuters, 2nd ed, 2020) [SA.4.190]-[SA.4.200].
 Petrovski v Nasev  NSWSC 1275 (17 November 2011).
 See, eg Gooley v Gooley  NSWSC 56 (12 February 2021).
 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, 705.
 Tobin v Ezekiel  NSWCA 285 (13 September 2012) .
 Hobhouse v Macarthur-Onslow  NSWSC 1831 (16 December 2016) .
 Tobin v Ezekiel  NSWCA 285 (13 September 2012) .
 Hoff v Atherton  EWCA Civ 1554 (19 November 2004) .
 Estate Rofe  NSWSC 257 (12 April 2021) .
 Lewis v Lewis  NSWCA 168 (6 August 2021) –, –.
 Lewis v Lewis  NSWCA 168 (6 August 2021) –, .
 Gooley v Gooley  NSWSC 56 (12 February 2021) .
 Tobin v Ezekiel  NSWCA 285 (13 September 2012) ; see also Starr v Miller  NSWSC 426 (6 May 2021)  (Hallen J) who noted that 'it is the will-maker's understanding that is decisive. The sufficiency of evidence going to whether she, or he, knew and approved the contents of the Will depends upon the circumstances of the case.’
 Tobin v Ezekiel  NSWCA 285 (13 September 2012) .
 Veall v Veall (2015) 46 VR 123, 173 ; Boyse v Rossborough (1857) 10 ER 1192, 1211; Micallef v Linney  NSWSC 898 (16 July 2020) ; Uniform Civil Procedure Rules 2005 (NSW) r 15.4.
 Micallef v Linney  NSWSC 1457 (22 October 2020) ; Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (Thomson Reuters, 2nd ed, 2020) [SA.4.230], [SA.4.300].
 Roebuck v Smoje  WASC 312 (20 December 2000)  (Hasluck J); Wingrove v Wingrove (1885) 11 PD 81, 82.
 Blendell v Byrne  NSWSC 583 (25 February 2019)  (Hallen J).
 Hall v Hall (1868) LR 1 P & D 481, 482.
 Tobin v Ezekiel  NSWSC 81 (1 March 2011) .
 Petrovski v Nasev  NSWSC 1275 (17 November 2011) .
 Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker  NSWCA 136 (15 June 2007) .
 Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker  NSWCA 136 (15 June 2007) .
 Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker  NSWCA 136 (15 June 2007)  (Ipp JA) quoting The Public Trustee v Mullane (Supreme Court of New South Wales, Powell J, 12 June 1992).
 That is, evidence which, if accepted, establishes the material fact in dispute.
 Nicholson v Knaggs  VSC 64 (27 February 2009) .
 Schrader v Schrader  EWHC 466 (Ch) (11 March 2013)  (Mann J).
 That is, evidence which, even if accepted, only establishes a fact from which a further inference is required to arrive at a material fact.
 Boyse v Rossborough (1857) 10 ER 1192, 1212; Winter v Crighton (1991) 23 NSWLR 116, 121–2 (Powell J).
 Tobin v Ezekiel  NSWSC 81 (1 March 2011) .
 Blendell v Byrne  NSWSC 583 (25 February 2019) .
 Nicholson v Knaggs  VSC 64 (27 February 2009) .
 Nicholson v Knaggs  VSC 64 (27 February 2009) , .
 See the comprehensive analysis in Richard Williams, 'Undue influence in will making – is it now easier to prove?' (2013) 16(1) Retirement & Estate Planning Bulletin 12, 14.
 Chant v Curcuruto  NSWSC 751 (25 June 2021)  (Hallen J) quoting In the Estate of Muirhead, Deceased  P 263, 265 (Cairns J).