What is the Two-Stage Process?

Essentially, the two stage process involves a process used by the High Court in contested will matters that works as follows.

The court firstly decides whether a will failed to provide adequately for the proper maintenance, education and advancement in life of an eligible applicant. Secondly, the court determines what provision should be made in such circumstances.

Since the introduction of the Succession Act 2006 (NSW) some judges (and commentators) have queried whether the two-stage process still applies when someone contests a will. The question, however, has not been definitively settled even though the Succession Act has been considered many times.

Ultimately, the two-stage process probably remains a useful tool in these types of matters even though it does not neatly mimic the exact wording of the current legislation. Insofar as there is any doubt the wording of the legislation will be determinative.

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