Can a court ignore a will by consent?

In many deceased estates it is necessary to approach the NSW Supreme Court to seek a grant of probate (the court's approval of the will and authority for the executor to deal with the estate). That process involves providing the will to the court and convincing the court of its validity.

So what happens when there is a question about the validity of a will? Can the court pass over a later will in favour of an earlier will simply because the affected beneficiaries ask it to? The Supreme Court dealt with that question in the recent decision of Cassarino v Cassarino.

In that case, the deceased died leaving behind wills prepared in 2015 and 2016. Proceedings disputing the 2016 will were commenced in 2018 and in 2020 the parties reached an agreement that the 2016 will should passed over in favour of the 2015 will. They asked the court to make orders to that effect.

In considering that application, the court noted that "the court will not, as part of a compromise, be willing to pass over a [will if] there is no evidence of invalidity. Where the evidence filed is insufficient, the court may refuse to approve the compromise and instead direct a trial on written evidence, even where the matter is agreed or uncontested."

Fortunately for the parties in Cassarino, there was significant evidence upon which the court could be satisfied that the compromise reached by the parties was reasonable and appropriate and that the will might have been invalid. The court therefore granted probate of the 2015 will.

It's worth being aware that this decision was about whether the court itself should ignore the 2016 will. So long as all relevant beneficiaries under both wills agree, it is possible to ignore a later will and distribute a deceased estate in accordance with an earlier will or in some other way agreed between them. However, doing so can have significant tax and stamp duty consequences so it may be appropriate to seek the Court's approval of an earlier will before distributing an estate.