Re Estate Barzacca

These proceedings call for a consideration of case management principles applicable, upon an exercise of the Court’s probate jurisdiction, when an applicant for a grant of probate of a will (the plaintiff) is confronted by a probate caveat and applies for an order that the caveat cease to be in force, activating rule 71(4) of Part 78 of the Supreme Court Rules 1970 NSW (commonly called “the Probate Rules).

Rule 71(4) is in the following terms :

The focus for attention in these proceedings is on rule 71(4)(b). There is no dispute that the caveator in these proceedings (the defendant) has a relevant “interest” within the meaning of rule 71(4)(a).

The core points to be determined in these proceedings are:

The second of these core points focuses attention on the nature of the case which the defendant seeks to advance regarding the validity and operation of known wills of the deceased. He contends that the wills propounded by the plaintiff are inconsistent with statements made to him by the deceased during her lifetime (a fact not of itself unusual in a succession case) and he apprehends that the plaintiff isolated her from him and poisoned her mind against him in a manner calculated to secure the deceased’s estate for himself, to the exclusion of the defendant.

The defendant has endeavoured, without access to information which is peculiarly within the knowledge of the plaintiff and the solicitors for the plaintiff, to identify a case against the validity of the wills of the deceased disclosed by the plaintiff and to do so within the logical legal framework (detailed at length in Estate Rofe [2021] NSWSC 257 at [104]-[166]) generally adopted upon a consideration of whether a will was the last will of a free and capable testator.

That framework incorporates questions about whether a deceased person had “testamentary capacity” at the time a will was executed (or, in some cases, when instructions were given for the drafting of a will); whether the deceased “knew and approved” the contents of the will; whether the deceased’s execution of the will was procured by “undue influence” (coercion) of another party; and whether execution of the will was procured by the “fraud” (misleading and deceptive conduct) of another party. A party who propounds a will bears the ultimate onus of persuading the Court that it was the last will of a free and capable testator. In the conduct of proceedings about the validity of a will a party who propounds a will bears an evidentiary onus to establish “testamentary capacity” and “knowledge and approval”. A person alleging invalidity of a will bears an evidentiary onus to establish “undue influence” or “fraud”. The ultimate onus (of proving that a will was the last will of a free and capable testator) remains on the party propounding the will.

In the present proceedings the defendant contends that he should be allowed access to the Court’s case management regime to investigate: (a) whether the deceased made a will or wills other than those disclosed by the plaintiff; (b) the circumstances in which each will of the deceased was prepared and executed; and (c) the health of the deceased at the time any will made, or purportedly made, by her was executed.

In case management of probate proceedings, the Court endeavours, in the service of due administration of a deceased estate and the public interest in the due administration of estates, to strike a balance between competing interests (public and private) in each particular case.

Experience teaches that the due administration of an estate may be frustrated or delayed either by a reluctance on the part of a person propounding a will to make disclosures about other wills or the circumstances in which a will was prepared and executed or, on the other hand, by an opponent of a will insisting upon an exhaustive investigation of remote possibilities bearing upon the validity of the will or complaining about collateral issues such as those involving (in the absence of anybody authorised to act on behalf of the deceased’s estate) an accounting for estate assets.

In Re Estate Capelin (Deceased) [2022] NSWSC 236; 107 NSWLR 461 I held that a caveator seeking to resist an order that a caveat cease to be in force is not required to establish a prima facie case. In determining whether to make such an order, rule 71(4) of the Probate Rules is to be read and applied in accordance with its terms.

The significance of that determination is that it departed from contrary reasoning of Powell J in Azzopardi v Smart (Estate of Smart) (1992) 27 NSWLR 232.

The ghost of Azzopardi v Smart lingers in the air as an applicant for probate in these proceedings (the plaintiff), in substance, contends that a caveator (the defendant) should have no access to the Court’s processes for the compulsory provision of information (in particular, subpoenas for the production of documents) when called upon, by reference to rule 71(4), “to show” the existence of “a doubt as to whether [a] grant of probate or administration should be made” before an order for pleadings in aid of a contested probate suit is made.

In Re Estate Capelin I drew, particularly, upon the learning and experience of Hallen J in Estate of Katalinic [2020] NSWSC 805 and Estate of Linworth [2021] NSWSC 334, and of Windeyer J in Estate of Weinstock [2007] NSWSC 193; (2007) 1 ASTLR 156.

In that connection I here extract (with emphasis added) several paragraphs of my judgment, to which I adhere:

In Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 I canvassed in detail case management principles informing practice of the Court in contested probate proceedings relating to the compulsory production of documents before pleading and service of evidence.

Under the heading “Commonly Encountered Needs for Information in a Probate Suit” I made the following observations in paragraphs [72]-[76] of Re Estates Brooker-Pain and Soulos (to which I adhere):

In both theory and practice problems about the availability of basic information can be encountered at the preliminary stages, as well as at later stages, of an application for a grant of probate or administration, accepting that a “probate caveat” is not itself an originating process but rather (as recognised in Re Estate Capelin at [11] and [16]-[18]) a warning of a requirement for notice to a interested party before a grant of probate or administration is made.

Problems associated with a lack of basic information concerning the administration of a deceased estate are now routinely addressed by an order for the filing and service of a verified “disclosure statement” by all parties to a probate suit and an order for a person identified as having been involved in the preparation or execution of a will to file a “discovery affidavit” to disclose the circumstances in which the will was prepared and executed.

A “Disclosure Statement”. Under the current Practice Note applicable to proceedings in the Court’s Probate List (Supreme Court Practice Note SC Eq 7, issued on 13 June 2024) paragraph 19 describes what is commonly described as a “disclosure statement”.

Leaving aside that an order for a disclosure statement may be made by a judge no less than the Registrar in Probate, paragraph 19 is in the following terms:

Paragraph [20] of the Practice Note also warrants notice as a provision consistent with Re Estates Brooker-Pain and Soulos:

A Discovery Affidavit. The concept of a “Discovery Affidavit” reflects paragraphs [6]-[7] of Probate List Guidelines (published as “Version 2” on 28 January 2020), reproduced in Annexure “B” to a paper of mine entitled “Probate Law and Practice: An Introduction” and dated 3 March 2022 (published as a “speech” on the NSW Supreme Court website), recording standard draft orders of the Court:

On 20 May 2025 the defendant filed a general caveat against the grant of probate of the will dated 10 July 2014. Nothing turns on a formal defect in that caveat. It has served its purpose in engaging the parties’ competing claims.

On 16 July 2025 the plaintiff filed a notice of motion seeking an order that the defendant’s caveat cease to be in force. It is that motion which is presently before the Court and which provides an occasion for case management.

These proceedings concern the estate of Vera Barzacca (“the deceased”) who was born on 21 July 1936 and died on 5 January 2025, aged 88 years, leaving wills dated 10 July 2014 (propounded by the plaintiff, the executor named in the will) and 3 February 2012 (possibly to be propounded by the defendant), if not also other undisclosed wills.

The deceased was aged 76 years when she executed the will dated 3 February 2012 and 78 years when she executed the will dated 10 July 2014. She was aged 80 years when, on 3 November 2016, she became a full time resident at an aged care facility at Georges Hall, where she remained until her death eight years or so later.

The deceased was predeceased by her husband (Fiorino Barzacca), who died on 24 May 1992.

There were two children of the marriage between the deceased and her husband; namely:

The deceased was survived by two grandchildren. One of those is the defendant, the child of the deceased’s daughter Giuliana. The other is the plaintiff’s daughter, Alessandro.

As disclosed in an “Inventory of Property” annexed to an “Affidavit of Executor” sworn by the plaintiff on 27 February 2025 the estate of the deceased at the time of her death had an estimated gross value of $1,411,973 comprising:

The residential property of the deceased was her home until such time (in 2016) she took up residence in the nursing home where she remained until her death.

An inference is available on the evidence presently before the Court that, from a date preceding her admission to the nursing home, her affairs were managed by the plaintiff as her (enduring) attorney.

Her Condell Park property is located next door to the plaintiff’s residence. The two properties comprised a single lot until that lot was subdivided in or about 2003 or 2004 so that the plaintiff and his family could own one subdivided Lot and live there.

The defendant contends that significance attaches to the fact that the plaintiff lived next door to the deceased (and managed her affairs) because, he says, the plaintiff used his proximity to the deceased to encourage her to be dependent upon him and to turn her against the defendant, isolating her from the defendant to the extent of not keeping him informed of her personal circumstances or her death and burial.

On the evidence presently available to the Court, there is a pattern of complaint on the part of the defendant to the effect that, as she became increasingly dependant upon him, the plaintiff poisoned the mind of the deceased against him (the defendant) and influenced her, by stages, to depart from her earlier expressed intentions to treat her two children equally and, after the death of her daughter, to leave her estate to her two grandchildren, each representing one of the two branches of her family.

It is not necessary for present purposes to form a view about the ultimate merits of the defendant’s complaints but, in my assessment, they are not frivolous or lacking in bona fides.

There is presently no evidence before the Court as to whether the deceased made a (new) will in the wake of her husband’s death. There is no evidence presently before the Court as to whether the deceased made a (new) will in the wake of the death of her daughter, the mother of the defendant.

Both deaths provided an occasion upon which the deceased might reasonably have been expected to make a will.

The defendant suspects that the deceased may have made one or more wills not presently disclosed by the plaintiff because she told him, after the death of his mother, that she proposed to divide her estate between her two grandchildren.

For what it is worth, each of the wills dated 3 February 2012 and 10 July 2014 contains a standard revocation clause, revoking all former wills. That, in itself, cannot be taken as evidence that the deceased in fact had executed a will earlier than the 2012 will but it is consistent with that possibility.

There is presently no evidence before the Court as to the circumstances in which the deceased’s 2012 and 2014 wills were respectively prepared and executed. Knowledge of those circumstances is uniquely within the camp of the plaintiff and his solicitors, as emerges from an examination of the form of the wills, bearing, as they do, marks of having been prepared and witnessed by the plaintiff’s solicitor.

In terms, the 2012 will (executed just over seven months after the death of Giuliana) appointed the plaintiff as the deceased’s executor and divided her estate between him (as to a 3/4 share) and the defendant (as to a 1/4 share) “as tenants-in-common equally” [sic] “PROVIDED ALWAYS that if any child of mine shall die in my lifetime leaving a child or children living at my death then such child or children attaining the age of eighteen (18) years shall take by substitution and if more than one as tenants-in-common equally the share in my residuary estate which his, her or their parent would otherwise have taken”.

The will carries a cover sheet naming “Marando Solicitors” (the solicitors on the record for the plaintiff in the current proceedings) and the signature of the deceased on the will appears to have been witnessed by Mario Marando (the solicitor on the record for the plaintiff) and a legal secretary from his office (Carmel Iaconis).

In terms, the 2014 will appointed the plaintiff as the deceased’s executor and left the whole of her estate to him “PROVIDED ALWAYS that if any child of mine shall die in my lifetime leaving a child or children living at my death, then such child or children attaining the age of eighteen (18) years shall take by substitution and if more than one as tenants-in-common equally the share in my residuary estate which his, her or their parent would otherwise have taken”.

Apart from naming the plaintiff as the deceased’s sole beneficiary, in substitution for a will that made provision for both the plaintiff and the defendant, the form of the 2014 will is substantially the same as the form of the 2012 will.

The 2014 will carries “a cover sheet of Marando Solicitors”. The deceased’s execution of the will was witnessed by Mario Marando and a legal secretary from his office (Earina Del Princpe).

The form of the “proviso” to the gift clause in each of the two wills does not sit comfortably with the gift to which it relates. It would make sense if, as one might infer was the deceased’s original intention, her estate was to be left to her two children, but not if there was only one “child” beneficiary named in the will.

Whether (and, if so, how) the gift clauses were understood by the deceased (if she understood them at all) is not clear. Whether either will was read by, or to, the deceased at the time of execution is not known to the Court but, presumably, is within the personal knowledge of the solicitor for the plaintiff and members of his staff.

It is at least arguable that the form of each will was not regular and rational on its face so as to give rise to presumptions that, when she executed the will, the deceased had testamentary capacity and knew and approved the will’s contents. Cf, Tobin v Ezekiel (2012) 83 NSWLR 757 at [44]-[55].

Introduction. Casting a wide net, the defendant has foreshadowed a challenge to the validity of the 2014 will (and possibly the 2012 will) on the ground of “undue influence” of the plaintiff in procuring the deceased’s execution of the wills.

Whether such a challenge would be based upon the probate concept of “undue influence” (conventionally described as “coercion” of a type that requires a finding that a will was not that of the testator but of some other person, recently described by the Court of Appeal in Schwanke v Alexakis [2024] NSWCA 118) or “equitable undue influence” (of the type contemplated by a majority of the High Court of Australia in Bridgewater v Leahy (1998) 194 CLR 457 at [62]-[63]), is unclear.

Whether there is any scope for the equitable principles governing undue influence on a challenge to the validity, or operation, of a will might, in due course, attract the attention of the High Court as a question of “public importance” (Schwanke v Alexakis [2024] HCASL 246; Camilleri v Alexakis [2024] HCASL 274) but in these proceedings there is no clear, present evidentiary foundation for an allegation of either equitable or probate undue influence.

From the perspective of the defendant, without the means of obtaining basic information presently within the knowledge of the plaintiff and his solicitor, he is not in a position to make a reasoned judgement about whether there is an objective foundation for his suspicion of “undue influence”, however defined.

A question for determination in this judgment is whether the defendant should be allowed an opportunity (and, if so, the nature of that opportunity) to engage the Court’s interlocutory processes sufficient to allow him to make a judgement about whether there is an objective foundation for his suspicion of “undue influence”.

The Law, Practice and Procedure. The question whether the equitable principles governing undue influence in relation to an inter vivos transaction can operate on a challenge to the validity or operation of a will is the subject of obiter by both the High Court (in Bridgewater v Leahy) and the Court of Appeal (in Schwanke v Alexakis). The High Court’s obiter favours an affirmative answer to the question. The Court of Appeal’s obiter emphatically favours a negative answer.

Faced with this state of affairs, I apprehend that a primary judge in the Supreme Court of NSW should follow the Court of Appeal, but allow a litigant at the first instance level of the court hierarchy to lead evidence and to make (at least formal) submissions to establish a case for inviting the Court of Appeal to reconsider the question on the merits in the particular proceedings or to ground an application for special leave to appeal to the High Court.

Viewed in the abstract (without regard to the facts of a particular case), the state of the law does not, at the level of a primary judge, permit or warrant summary disposal of a case for the operation of “equitable undue influence” principles on a challenge to the validity or operation of a will. Whether the obiter of the High Court is to prevail over that of the Court of Appeal is not within the province of a primary judge to decide. The function of a primary judge in this situation is to direct attention to what is required at first instance to allow all questions in controversy to be dealt with fairly. What, in particular, is required is a precise presentation of any allegation of “undue influence”, mindful of the differences between what are commonly described, in binary terms, as “equitable” and “probate” undue influence.

If a case of “equitable undue influence” is to be advanced in a probate suit in reliance upon the obiter of the High Court in Bridgewater v Leahy any pleading of that case should stay within the ambit of what was written by Gaudron, Gummow and Kirby JJ at 194 CLR 474-475 [62]-[63], here reproduced (omitting footnotes, with emphasis added):

There are two essential points here. First, the High Court opined that “probate undue influence” focuses upon the actual state of mind of a testator in determination of the ultimate question whether a particular instrument was the last will (a formal expression of testamentary intention) of a free and capable testator, rather than the quality of that intention and how it was formed. “Equitable undue influence”, by contrast, is concerned with both the quality of a testator’s intention and how it was formed.

Secondly, the High Court’s recognition that a finding of equitable undue influence might “not … attack a grant of probate itself, but … subject property passing under a will to a trust” aligns with contemporary experience of the law of succession in NSW.

Equity commonly intervenes in the administration of a deceased estate in a way that affects the operation of a will admitted to probate by attaching to the estate a declaration (together with consequential orders giving effect to the declaration) that property forms, or does not form, part of the deceased’s estate.

Social and Historical Context. In a society in which “elder abuse” is perceived to be rife (largely because of opportunities for abuse arising from misuse of an enduring power of attorney), estate litigation commonly involves a pattern of conduct inviting a claim by an estate representative for recovery of property or equitable compensation (in augmentation of an estate) arising from an allegation of undue influence, unconscionable conduct or a breach of fiduciary obligation involving an inter vivos transaction.

In that same society, increasingly given to informal arrangements for succession to property, estate litigation commonly involves diminution of an estate by recognition of a pattern of conduct giving rise to a claim against an estate for a declaration that an estate asset is held on trust for the claimant based, inter alia, upon principles governing a proprietary estoppel by encouragement; a common intention trust; a joint endeavour trust; or a contract to make a will, and not revoke it.

Whether leading to augmentation or diminution of a deceased estate, probate litigation is commonly associated with a “trust claim” that affects the operation of a grant of probate or administration “without attacking the grant itself”.

In a modern setting, the administration of a deceased estate commonly involves, in the one set of proceedings, an exercise of the Supreme Court’s probate and equity jurisdictions and (under Chapter 3 of the Succession Act 2006 NSW) the family provision jurisdiction.

If the obiter of Bridgewater v Leahy were to represent the law then, upon an exercise of equity jurisdiction, the Court could focus on the formation of a testator’s state of mind for the purpose of declining to give effect to an instrument execution of which by the testator was procured by the unconscientious conduct of another in the particular case. This could enable the Court to identify and maintain standards of conduct in a way not open upon an application of probate jurisdiction alone.

As the Court of Appeal noticed in the Schwanke v Alexakis, the question whether equitable principles should be applied in a probate setting predates Bridgewater v Leahy, as can be illustrated by reference to the NSW Law Reform Commission’s Report 47 (1986) - Community Law Reform Programme: Wills -The Execution and Revocation, paragraphs [8.31]-[8.35], here reproduced without footnotes:

The “consultant” referred to in paragraph [8.34] was identified in a footnote as “the late Mr Justice Hutley”, a leading probate lawyer of his generation.

The Commission’s hesitant decision “to make no recommendations in this area at this stage” marks its “postscript” on “undue influence and the law of wills” as an administrative equivalent of obiter. Nevertheless, it provides historical context for what fell from the High Court a dozen years later, even though minds may differ about the Commission’s characterisation of a family provision claim (now governed by Chapter 3 of the Succession Act 2006 NSW) as a “vehicle through which allegations of ‘undue’ influence are attempted to be ventilated”.

The Court of Appeal in Schwanke v Alexakis canvassed the Commission’s Report and other law reform reports.

Since that time the Law Commission of England and Wales has published a Report entitled Modernising Wills Law. The Report and a draft Bill were published on 16 May 2025.

I am far from persuaded that Australian law should follow the English down a path of legislative codification of the law of succession, which is the tendency of the Law Commission’s recommendations. However, there is some resonance between its perception of current day problems and those commonly experienced in Australia.

The Law Commission’s Summary of the Report summarises Chapter 9 of the Report relating to the law of testamentary undue influence in the following terms (with emphasis added):

The Law Commission’s stated aims of their project (with emphasis added) were “to make recommendations to reform the law so that it better:

A recurrent theme in the Commission’s Report is a need to protect vulnerable testators, in the service of testamentary freedom, deploying a standard of “reasonable grounds”.

I also note, in passing, that the Commission bracketed together “undue influence” and “fraud”, a common feature of discussions of the law of succession despite the independent nature attributed to each concept. In practice, there is an affinity between allegations of “undue influence” and “fraud” just as there is an affinity between allegations of “a want of testamentary capacity” and a “want of knowledge and approval”, each of which is a concept subordinate to the ultimate question of whether a will is the last will of a free and capable testator.

An introductory paragraph of the Commission’s Report provides the following context:

By its Report, the Commission recommended that the Wills Act 1837 be repealed and replaced by a new Act adapted to modern conditions. The significance for NSW of this is that the English Act of 1837 was adopted in NSW in 1840 and its essential features continue to inform NSW legislation. The fact that the 1837 Act has been the subject of critical review in England may provide an occasion to consider whether local Australian law has any lessons to learn from English experience. In the realm of “undue influence” the problems which the English Commission proposes be addressed by legislation might, in Australia, be addressed by adoption of the High Court’s obiter in Bridgewater v Leahy.

In Schwanke v Alexakis the Court of Appeal discounted the possibility that a change in rules of court may have played a part, or have a part to play, in consideration of “the onus of proving undue influence”.

In doing so the Court nevertheless noticed Leeming JA’s analysis in Lewis v Lewis (2021) NSWLR 487 at [131]-[136] of how “knowledge and approval” first seems to have been recognised as an element of a valid will in 1865 (rather than by reference to Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 as commonly thought) with a process of change connected with changes in pleading, procedure and practice in a probate suit following displacement of Ecclesiastical Courts by a secular Court of Probate in England in 1857, effecting reforms not embraced in New South Wales for some time after that date.

In paragraph [136] of his judgment Leeming JA made the following observations of present interest:

These observations may have resonance in charting subtle changes in the meaning and operation of the concept of “undue influence” in 19th century England. There appears to have been a more flexible concept of “undue influence” (associated with a concept of “improper conduct”) in the management of a probate suit by an Ecclesiastical Court (and, perhaps, Chancery) before the law of wills was taken over by Common Lawyers in the plethora of law reforms and changes in jurisprudence identified with the 19th century: Cf, Edward Vaughan Williams, Treatise on the Law of Executors and Administrators (Philadelphia, 1832), Volume 1, Chapter 1, Section 2, pages 33-38, paragraphs [34]-[38].

The Wills Act 1837 may not, of itself, have changed much about the concept of “undue influence” in a probate suit, but significance may attach to its displacement of the requirements for a valid will prescribed by the Statute of Frauds 1677 and it may have been a material factor in combination with other changes in the English legal system in the 19th century which favoured the development of ostensibly rational, rule-based reasoning associated with “scientific” systemisation of the law and legal literature: cf, AWB Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature” (1981) 48 University of Chicago Law Review 632, reprinted as Chapter 12 in Simpson, Legal Theory and Legal History (Hambledon Press, 1987).

If we take seriously the proposition that 25 July 1828 is the date upon which (by virtue of the Australian Courts Act 1828 (Imp), section 24) English law was “received” in the Colony of New South Wales, then a curious mind might wonder whether the English Wills Act 1837 requires that closer attention be given to the approach earlier taken to “undue influence” by the English Ecclesiastical Courts.

In giving attention to decisions of the English Ecclesiastical Courts, regard should be had to the fact that at the time the Supreme Court of NSW was established and vested with jurisdiction (by the New South Wales Act 1823 (Imp), in combination with the Third Charter of Justice promulgated under that Act and the Australian Courts Act 1828 (Imp)) the Court was (with the notable exception of divorce law) granted plenary jurisdiction by reference to the jurisdiction exercised by nominated English courts and judicial officers. This was more than the several, separated judicial authorities of England had themselves.

The NSW Supreme Court’s jurisdiction included specifically ecclesiastical jurisdiction at a time when England's secular courts had no ecclesiastical jurisdiction, save for appeals to the Privy Council. Admittedly, as the Colony of New South Wales developed and English courts embraced a centralist approach to judicial precedent throughout the British Empire local “probate jurisdiction” (as, in New South Wales, the ecclesiastical jurisdiction became known only in 1890) generally followed English precedents; but, in reading English caselaw as it developed in the 19th century, care needs to be taken not to limit the nature and breadth of the Court’s jurisdiction by changes of practice and procedure in English courts as they moved towards the Judicature Acts of 1873 and 1875 (UK).

At least some of the mid-19th century discussion about the intersection of the ecclesiastical and equity jurisdictions, in the context of “undue” or “improper” influence, was directed to a proposition that resort could not be had to Chancery in a case which was within the province of an Ecclesiastical court.

That proposition may be viewed as directed to practice and procedure rather than the substantive law as understood by a modern lawyer.

A comprehensive treatment of historical shifts in terminology and their contemporary significance can be found in Yazdani, “Testamentary Undue Influence - A Historical Overview” (2023) 53 Australian Bar Review 182.

The following extract from a book of lectures published by the English Council of Legal Education in 1901, entitled A Century of Law Reform: Twelve Lectures on the Changes in the Law of England during the 19th Century, at pages 320-322, taken from a lecture by Dr Arthur Underhill provides (with emphasis added) an historical context that viewed the law of wills as an adjunct of “the practice of conveyancing” (a perspective to which the law might be returning as a will becomes a standard accompaniment of an enduring power of attorney in anticipation of incapacity on the road to death):

Although the meaning of “probate undue influence” is settled in contemporary Australian law an examination of the intersection between the probate and equity jurisdictions in the present day may require an appreciation that, before its eclipse in the 19th century in England, “ecclesiastical jurisdiction”, may have had a broader field of operation than its progeny, “probate jurisdiction”, and the “equity jurisdiction” has, by its very nature, always had a capacity to adapt to time, place and the circumstances of a particular case.

Case Management Considerations. In any event, in case management terms, a party currently challenging the validity of a will on the ground of “probate undue influence” in this Court can, and should, plead that ground in a defence to the statement of claim relied upon by a party propounding the will. In that case, given the traditional form of “issue pleadings” in a probate suit (reminiscent of pre-Judicature Act common law pleadings), the allegation of undue influence can be made in general terms, coupled with particulars.

A party who seeks, in this Court, to challenge the operation of a will on the ground of “equitable undue influence” ordinarily should do so by a cross claim pleading in a narrative form the allegations of fact said to establish a case for equitable intervention. Such a cross claim might be filed in conjunction with a defence to the statement of claim which pleads that, should a grant of probate be made, the grant should be expressed to be subject to a trust or whatever other equitable relief might be granted on the cross claim.

Deployment of a cross claim as a vehicle for consideration of a dispute about the operation in a probate suit of the principles relating to equitable undue influence may be procedurally important for several reasons:

At the intersection of the equitable and probate jurisdictions of the Court the relief granted might not take the form of declaration of trust. It would be open to the Court, having found that a particular gift of property in a will was procured by undue influence as understood on an application of equitable principles, either to:

Each of these approaches is consistent with the Court’s control of its own processes. Leaving aside debate about whether a trust is characterised as “remedial” or “constructive”, an order imposing a trust on the operation of a grant of probate (or administration) of a will is commonplace. In any event, a grant is both an order of the Court and an instrument of title that derives its authority from the fact it is an order of the Court (even if, in defining the function of the Court in admitting a will to probate, a distinction is drawn between a grant of probate of the will and a grant of administration with the will annexed): Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [228]-[233].

In concept, a finding that a will, or part of a will, was tainted by “equitable undue influence”, could carry the same consequences in a probate suit as a finding that a will, or part of a will, was invalid for “a want of knowledge and approval” or because procured by “undue influence” (coercion) or “fraud” (misleading and deceptive conduct) in the sense understood on an exercise of probate jurisdiction.

A scheme of pleadings designed to make explicit the different fields of operation of the Court’s probate and equity jurisdictions is likely to crystallise debate more effectively than a single pleading that blurs different concepts.

Although the High Court identified as an equitable remedy “a trust in favour of the residuary beneficiaries or the next of kin”, regard should be had to the Court’s reminder that equitable relief is moulded to do “practical justice” between contending parties: Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 at 111-115; Bridgewater v Leahy at [126]-[128].

A Critique of the Case “For” Equitable Undue Influence in a Probate Suit. The unsuccessful challenges to the will admitted to probate in Schwanke v Alexakis may have fallen short in five respects.

First, they evidently sought to import into probate proceedings (bearing upon the validity, rather than merely the operation, of a will) equitable principles of general application to inter vivos transactions, not merely equitable principles governing undue influence.

Secondly, they apparently sought to import into a probate suit equitable presumptions, superimposed on probate presumptions (attributing to all such presumptions a status more formal than inferences of fact drawn from common experience without a full examination of the different purposes served by different “presumptions”), focusing attention on questions of “onus of proof” at the expense of a primary focus on the essential character of a finding of equitable undue influence.

Thirdly, they did not make explicit the essential character of equitable undue influence as articulated in Quek v Beggs (1990) 5 BPR 11,761, by reference inter alia to Johnson v Buttress (1936) 56 CLR 113.

Fourthly, they focused no concentrated attention on the possibility that insights about the role of “undue influence” (by whatever name known) relating to the validity or operation of a will might be had from historical research relating to the practice of Ecclesiastical Courts before enactment of the Wills Act 1837.

Fifthly, and critically, they failed to persuade the primary judge or the Court of Appeal that there was any material impropriety in the conduct of the beneficiary of the will ultimately admitted to probate.

The issue raised by Bridgewater v Leahy would have arisen more directly for the Court of Appeal had the primary judge or the Court of Appeal itself found as a fact that the will under challenge was tainted by impropriety.

The fact that in a different forum (governed by a different jurisdiction and applying different legal criteria) the beneficiary was the subject of adverse findings in disciplinary proceedings as a medical practitioner (Health Care Complaints Commission v Alexakis [2023] NSWCATOD 99; Health Care Complaints Commission v Alexakis (No 2) [2024] NSWCATOD 82) was not, on the evidence before the Court, taken as impropriety affecting characterisation of the will as an expression of the actual testamentary intentions of a free and capable testator.

Bridgewater v Leahy provides an opportunity for a review of the law relating to “undue influence” in a probate setting. It does not, however, provide a licence for a party to assert a broader case in equity by reference to concepts, often found in combination with an allegation of undue influence but distinctly different, relating to an allegation of “unconscionable conduct (commonly described by reference to Blomley v Ryan (1956) 99 CLR 362 or Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447) or a “breach of fiduciary obligations” (commonly explained by reference to Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41 at 68, 96 and 141).

As is made clear in the classic judgment of Dixon J in Johnson v Buttress (1936) 56 CLR 113 at 134-136 the operation of the equitable principles governing “undue influence” does not depend upon the existence of a “presumption of undue influence” arising from an established category of relationship such as “solicitor and client”, “doctor and patient “ or “priest and penitent”.

In Quek v Beggs (1990) 5 BPR 11,761 at 11,764-11,765 McLelland J insightfully summarised the principles governing equitable undue influence in the context of an inter vivos gift:

The principles governing equitable undue influence may be capable of supplementing a challenge to the validity or operation of a will in three ways.

First, Equity could locate a primary focus of the Court’s attention upon whether:

Secondly, Equity could focus attention on whether:

Thirdly, upon an application of equitable principles, the Court could interfere with the operation of a will, not on the ground that any wrongful act had in fact been committed by the interested person, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.

To speak here of “public policy” is to use language conventionally used in connection with equitable undue influence. It is not an invitation to dwell upon a larger concept.

A Critique of the Case “Against” Equitable Undue Influence in a Probate Suit. A countervailing view of the world of a testator favoured by the Court of Appeal in Schwanke v Alexakis, upon an application of probate jurisdiction, might be gleaned from an extended passage from Banks v Goodfellow (1870) LR 5 QB 549 at 563-566, either side of the classic test of testamentary capacity usually quoted at 565, bearing upon the virtues of testamentary freedom.

It is not necessary to extract the whole passage. Sufficient to record that Cockburn CJ, at 564, adopted what was written by Chancellor Kent, a distinguished American judge, in Van Alst v Hunter 5 Johnson N.Y. Ch. Rep. at p 159:

Chief Justice Cockburn continued:

These observations provided a point of entry for Cockburn’s classic test of testamentary capacity.

A more explicit comparison between “probate undue influence” and “equity undue influence” (in substance, reflected in the Court of Appeal’s judgment in Schwanke v Alexakis) can be found in WS Holdsworth (the eminent historian of English Law) and CW Vickers, The Law of Succession: Testamentary and Intestate (Oxford, 1899) at pages 68-70 (omitting footnotes):

The cases referred to by Holdsworth and Vickers in footnotes included, principally, Wingrove v Wingrove (1885) 11 PD 81; Boyce v Rossborough (1857), 6 HLC 1; 10 ER 1192; and Parfitt v Lawless (1872) LR 2 P&D 462, authorities relied upon by Powell J in Winter v Crichton, Estate of Galieh (1991) 23 NSWLR 116, the primary authority in NSW for many years until the judgment of the Court of Appeal in Schwanke v Alexakis.

Policy Considerations in Context. There is nothing conceptually standing in the way of adoption of the High Court’s obiter in Bridgewater v Leahy, but minds may differ as to the policy implications of that approach and the approach of the Court of Appeal.

In weighing different policy considerations (upon an orthodox, incremental exercise of the judicial function) it might be necessary to reflect upon the fundamental changes to Australian law and society effected in or about the 1980s, the implications of which are only now manifesting themselves in experience of elder abuse.

Critical legislative reforms effected a redefinition of the concept of agency (with plenary authority granted by an enduring power of attorney, coupled with an enduring guardianship appointment) in anticipation of incapacity before death; an increased informality in the making, and operation, of wills; and a greater degree of flexibility in dealing with management of the affairs (both the estate and the person) of a person who, by disability or otherwise, is incapable of management of his or her own affairs.

In the modern era, although a will takes legal effect only upon the death of a testator, it is an integral part of a suite of documents (an enduring power of attorney, an enduring guardianship appointment, a will and, possibly, an advance care directive) which are commonly prepared at one and the same time and, not uncommonly, made the subject of competition between competing claimants on the bounty or property of a vulnerable person. As part of a suite of documents, a will can be presented by an enduring attorney or an enduring guardian as support for plenary authority in self interested transactions effected in breach of fiduciary obligations.

A third party dealing with an enduring “agent” of an incapacitated person, with the plenary authority an enduring power of attorney ordinarily confers, may take comfort against the agent’s “self-dealing” by the production of a will.

Not uncommonly, an indication of a vulnerable person’s descent into dementia is his or her rapid execution of competing enduring powers of attorney, enduring guardianship appointments and wills as interested persons (for good or ill) jockey for position in capturing the body and person of the vulnerable person.

In practice, the boundary currently perceived to separate inter vivos and testamentary transactions (which has told against an application of equitable undue influence in a probate context) has become blurred, at least in the popular imagination.

In part, that may be because families routinely invoke the statutory jurisdiction of the NSW Civil and Administrative Tribunal (NCAT), in its Guardian Division, to challenge the validity, or to seek a review, of an enduring power of attorney or an enduring guardianship appointment (executed contemporaneously with a will) without there being an avenue for an inter vivos challenge to the validity of the will save, possibly, via an application (under the Succession Act 2006 NSW) for a court-authorised (“statutory”) will.

The Factual Context of these Proceedings. The fact that each of the 2012 and 2014 wills was ostensibly prepared by a solicitor, and executed in his presence, does not necessarily preclude a finding of invalidity on a ground of “undue influence” but it presents a formidable forensic obstacle to anybody who challenges the validity of a will on that ground.

On the evidence presently available to the Court, the defendant’s prospective “undue influence” challenge has no reasonable prospects of success as a “stand alone” challenge to either of the wills presently under consideration.

Nevertheless, the defendant suspects that he was displaced in wills of the deceased by conduct of the plaintiff unfairly influencing the deceased to change her wills in his favour, at the same time conducting her affairs, and engaging with her, in his own interests (in a manner facilitated by his holding an enduring power of attorney, details relating to the preparation and execution of which are not in evidence before the Court) and isolating her from the defendant.

In my opinion, he should be allowed a reasonable opportunity to investigate this, at least to the extent of disclosure of information peculiarly within the knowledge of the plaintiff or his solicitors.

That the plaintiff acted as an attorney ostensibly on behalf of the deceased is a fact in evidence (without factual detail), because (relying upon a Power of Attorney registered as Book 4719 No 879) he executed a registered mortgage (dealing AM186346) over her home to secure a loan of $255,500 at some time in 2016, but there is no evidence presently before the Court that he did so otherwise than in the interests, and for the benefit, of the deceased.

Whether Mario Marando was involved in the preparation and execution of an enduring power of attorney in favour of the plaintiff is not presently the subject of evidence before the Court.

Whether the deceased ever executed more than one enduring power of attorney, an enduring guardianship appointment or any other documents referable to estate planning is not the subject of evidence before the Court.

How far back from the deceased’s admission to a nursing home in 2016 the plaintiff managed her affairs (or was influential in her management of her own affairs) is not known. That said, an inquiring but not overly suspicious mind might discern a close relationship between the deceased and the plaintiff as her only surviving child, going back to the death of her only other child (the mother of the defendant) in traumatic circumstances or the subdivision of her residential property to accommodate the plaintiff and his family as next door neighbours.

The defendant’s suspicion that he was displaced in wills of the deceased by conduct of the plaintiff unfairly influencing the deceased to change her wills in his favour, coupled with imprecision in the articulation of an “undue influence” case, requires an appreciation of the distinct concept of “fraud” as a ground for challenging the validity of a will.

Upon an exercise of probate jurisdiction the word “fraud” is a label different in nature and scope from “common law fraud”. The execution of a will might be procured by conduct that is misleading or deceptive, although, not consciously dishonest.

Whether the defendant can bring his case within the purview of “probate fraud” is, at best, doubtful on the present state of the evidence; but he should have an opportunity (no more than may be reasonable) to reflect on that possibility with the benefit of information peculiarly within the knowledge of the plaintiff or his solicitors.

Although there is presently no allegation in these proceedings that the deceased’s execution of a will or codicil was procured by fraud, recognition of the field of operation of “fraud” in probate proceedings is important to distinguish the concept from the concepts of “undue influence” upon an exercise of probate or equity jurisdiction.

That can be done conveniently by noting the observations of the Court of Appeal in Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 at [61]- [69]:

The Present State of the Evidence. On the question of evidence bearing upon the deceased’s capacity at the time she executed the 2014 will, the documentary evidence presently available to the defendant is thin, but suggestive of cognitive decline, possibly as far back (at least) as 2009.

The Death Certificate of the deceased (for which the plaintiff was the “Informant” and a Dr Susan Harnett was the “Certifying Medical Practitioner”) records the following information against the entry, “Medical (Cause of Death and Duration of last illness)”:

In response to written requests made by the solicitor for the defendant, the Facility Manager of the deceased’s Aged Care Facility voluntarily provided information (via emails dated 26 August 2025) to the effect that the deceased stayed at the Facility from 3 November 2016 until 5 January 2025; the Facility holds “a very large amount” of documentation relating to her residence and care at the Facility; the deceased was admitted to the Facility as a “high care resident”, with “Dementia in Alzheimer’s disease”; and that she had been the subject of a “Comprehensive Assessment” from an ACAT team at the time of her admission to the Facility.

A Diversion: An “Evidentiary Objection”. The plaintiff contends that the solicitor for the defendant acted improperly in soliciting information of this nature after I had, at a directions hearing, declined an application then made on behalf of the defendant to issue subpoenas for the production of documents addressed, inter alia, to the deceased’s nursing home.

That application was refused essentially because it was premature. I was concerned to obtain disclosure by the defendant of the best case he was able to advance on the evidence then available to him. In refusing leave to issue subpoenas at that time I made no orders precluding him from making his own inquiries of institutions with which the deceased was associated. Whether or not any institution felt able, and was willing, to provide such information was a matter for the institution concerned.

The plaintiff’s contention goes beyond criticism of the solicitor for the defendant as appears from paragraph [7] of written submissions of counsel for the plaintiff dated 28 August 2025 (with editorial adaptation):

This submission was made in support of a contention that the Court should be satisfied that there is no evidence that shows there is a doubt as to whether the will propounded by the plaintiff should be admitted to probate.

In strict procedural terms, no objection was taken to the admissibility of evidence requiring that a ruling on evidence be made. The plaintiff did not submit that any of the “evidence” tendered by the defendant could not be taken into account for the purpose of a determination under rule 71(4) of the Probate Rules. Nor did the plaintiff contend that documentary material relied upon by the defendant intrinsically lacks probative value. The plaintiff’s principal point was that the facts of which it may be evidence were remote in time from the dates of the deceased’s wills and the evidence was therefore fundamentally irrelevant.

So far as is material, section 138(1) and (3) of the Evidence Act 1995 is in the following terms:

I am not persuaded that, in the context of the present proceedings, section 138 of the Evidence Act has any material application to the concept of “the evidence” within the meaning of rule 71(4) of the Probate Rules. Before I address that question, it is necessary to notice legislation bearing upon the question.

Upon a proper construction of the Evidence Act and the Probate Rules, reference must be made to the Interpretation Act 1987 NSW, section 33:

The expression “statutory rule” means, inter alia, “a rule of court”: Interpretation Act 1987, section 3(3) and Schedule 4.

The Evidence Act 1995 applies to “all proceedings” in the Court, including “interlocutory proceedings or proceedings of a similar kind”: section 4(1)(b).

Section 8 of the Evidence Act provides that the Act “does not affect the operation of the provisions of any other Act”.

So far as is material, section 9 of the Evidence Act is in the following terms:

Although a study of Anglo-Australian legal history teaches that the probate jurisdiction of the Court originated in the Ecclesiastical jurisdiction of English church courts rather than a court of equity associated with the Lord Chancellor of England, I take the reference in section 9(1) of the Evidence Act to “the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which” the Act applies as intended to refer to the general “judge made” law administered by the Court whatever its historical origins. Cf, Mark Leeming, Common Law, Equity and Statute: A Complex Entangled System (Federation Press, Sydney, 2023), section [2.7].

Section 9(2)(c) of the Evidence Act needs to be read with section 11 of the Evidence Act and sections 14 and 16 of the Civil Procedure Act 2005 NSW.

Section 11 of the Evidence Act is in the following terms:

Sections 14 and 16 of the Civil Procedure Act 2005 are in the following terms:

For completeness, it might be noted that section 5 of the Civil Procedure Act provides that nothing in that Act or the Uniform Civil Procedure Rules 2005 NSW limits the jurisdiction of the Court and nothing in those rules extends the jurisdiction of any Court except to the extent to which the Civil Procedure Act expressly so provides.

Section 138 of the Evidence Act is implicitly speaks principally to adversarial proceedings in which evidence is “admissible” or not according to whether it bears upon “the probability of the existence of a fact in issue” in contested proceedings, not inquisitorial proceedings of the nature of those contemplated by rule 71(4) of the Probate Rules.

The concept of “a fact in issue” is embedded in section 138(3)(a) of the Evidence Act by the definition of “probative value” in the Dictionary of the Act. It provides that “probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

The concept of “a fact in issue” is also prominent in the general provisions of Part 3.1 (sections 55-58) of the Evidence Act (with emphasis added):

A simple answer to the plaintiff’s “evidentiary objection” may be that (upon an assumption that the Health Records and Information Privacy Act 2002 NSW was contravened (or that some impropriety otherwise attached to the conduct of the defendant) “the desirability of admitting the evidence” outweighs “the desirability” of not admitting the evidence the subject of the plaintiff’s objection.

A further simple answer to the objection may be that, if the defendant is allowed to contest the validity of (at least) the deceased’s 2014 will, the likelihood is that he would in due course and in the ordinary course be permitted to subpoena the nursing home for production of the documentation the subject of the plaintiff’s objection.

That said, the plaintiff’s submissions call for close attention to the proper construction of rule 71(4) of the Probate Rules (particularly the proper construction of the word “evidence”) and the purpose of a determination that a probate caveat cease to be in force.

Although the filing of a “probate caveat” does not, strictly, constitute the commencement of probate proceedings, it may be accepted that an application that a probate caveat cease to be in force engages the concept of an “interlocutory proceeding or a proceeding of a similar kind” within the meaning of the Evidence Act, section 4(1)(b).

Still, nothing in the Evidence Act or the Civil Procedure Act operates, expressly or by implication, to limit the “evidence” open to the Court’s consideration in making a determination under the Probate Rules, rule 71(4).

Were it otherwise, the purpose for which the Court’s probate jurisdiction exists might be frustrated. The fact that the central personality in probate proceedings (a deceased person) is not a party to proceedings critically concerned with his or her affairs lies at the heart of the public interest character of probate proceedings, and distinguishes them from adversarial proceedings between competent parties present and able to manage their own affairs.

A contested probate suit focusing on the validity or otherwise of a testamentary instrument may lend itself to characterisation as an adversarial proceeding without necessarily displacing the inquisitorial, public interest features of an exercise of probate jurisdiction. However, the terms in which rule 71(4) of the Probate Rules are expressed are consistent with the view that proceedings on an application for an order that a probate caveat cease to be in force essentially engages the Court’s inquisitorial case management functions rather than simply providing an occasion for an adversarial contest.

In my opinion, on its proper construction the word “evidence” in the Probate Rules, rule 71(4) means “available information” bearing upon whether “there is a doubt as to whether [a] grant of probate or administration should be made”. That information may, or may not, take the form of evidence admissible at a contested hearing for a grant of probate or administration.

Although a caveator may bear a forensic onus to persuade the Court, by reference to the criteria in subparagraphs (a) and (b) of rule 74(1), to exercise the discretion implicit in the word “may” to decline to order that a caveat cease to be in force, there is nothing in the rule that precludes a caveator inviting the Court to make “case management” orders for the investigation of facts bearing upon the validity of a will before making a determination whether (and, if so, on what terms) a challenge to a will can be maintained.

An ACAT Assessment. A copy of an ACAT assessment dated 2 November 2016 provided to the solicitor for the defendant by the deceased’s Aged Care Facility records that participants in the assessment included the plaintiff and his wife, who are recorded as having wanted to be the first and second points of contact for the deceased respectively.

It also records that the deceased had approval for “residential permanent” care of a type described as “residential respite high care”. The plaintiff is recorded as being “very concerned about [the deceased’s] deteriorating physical + cognitive health” in circumstances in which she had recently been discharged from hospital, had experienced falls and a change in cognitive status, and there were “carer burden/issues”.

Under a heading entitled “Carer Overview - Carer Perspective” and in answer to the question “What type of care do you provide? How often?” the response recorded is “Help with shopping, finances, housework, transport + meal preparation”.

Her community based activities and interests were described as being “limited to the home and club alone”.

Although she lived alone in her house she lived next door to her son (the plaintiff) and daughter-in-law who are recorded as having had “regular contact” with her “sometimes 5-6 times daily”.

The ACAT report records, under the heading “Medical Domain”, that the deceased’s “health concerns impacting independence” comprised “cognition, self-neglect, alcohol intake”. She was recorded as having “dementia in Alzheimer’s disease, a typical or mixed type”, coupled with hypertension (high blood pressure), but she was nevertheless “mobile and talkative”.

She was recorded as then receiving clinical services from “hospital rehab”, which I infer refers to Bankstown Hospital. Her “relevant medical history” is recorded as being “HTN [which I infer to be a reference to hypertension], depression, falls, shingles, urinary incontinence, falls, alcoholism”.

The plaintiff is recorded as being “very concerned that [the deceased] drinks when depressed and often hides alcohol/wine from him”. He is also recorded as having helped her in relation to travelling, shopping, cooking, medicine, bathing, dressing and finances. She is recorded as having been “completely unable to do any shopping” and “completely unable to handle money”.

Under the heading “Psychological domain” the ACAT report records that the plaintiff had noticed a change in the deceased’s memory and thinking “especially in last three months eg STMI/Confusion” and that the time frame over which those changes had been experienced was “approximately the last five years”, noting that the deceased was not “aware of time and place” and that there had been changes in her personality as she had become “more and more depressed + agitated also at times”. She is recorded to have experienced “memory problems” or “confusion” and to have demonstrated “behavioural problems” particularised as “difficult to reason with + verbal aggression”.

In answer to the question “Are there any concerns regarding [the deceased’s] decision-making capabilities?” the ACAT report records: “Yes (minor impairment/requires occasional supervision or assistance through to severe impairment)”. She is said to have forgotten things “very often” and to have suffered “memory loss”. She is said to have been “nervous” most of the time, “depressed” some of the time” and lonely “most of the time”.

She is recorded to have been “socially isolated” living “next door to son”. “[A] bit socially isolated as her daughter and her friends passed away. She also feels lonely. She feels very depressed”. She is recorded to have “short term memory problems” always and “long term memory problems” regularly, with “impaired judgement” always. She is said to have been managing at home, “dependent on family for help”.

The ACAT report records that the deceased belonged to “risk of vulnerability cohort[s]” described as a “culturally and linguistically or ethnically diverse individual” and “socially isolated individual”.

She is recorded by the ACAT report to have had “complex issues” including “health conditions, significant psycho social concerns, memory problems/confusion, behavioural concerns, falls, change to personality/behaviour, continence issues, sleep difficulties, and health literacy”.

The upshot of the ACAT report is that in November 2016 the deceased was plainly a vulnerable person with issues possibly going back five years in an indeterminate way but involving a deterioration in cognition shortly before the time of the ACAT assessment.

The plaintiff contends that, after the death of his mother, the defendant had little contact with the deceased and that he was estranged from her.

That is not the defendant’s evidence, on the contrary. His evidence is that he was always close to his grandmother, particularly after the death of his mother (her only daughter) but that the plaintiff monopolised care of the deceased and isolated her from him. That evidence is corroborated by evidence of his father.

Whether the deceased regarded herself as estranged from the defendant and, if so, whether the plaintiff contributed to that state of mind are questions which cannot be answered at this stage of these proceedings.

At this stage, without an opportunity to call upon the Court’s disclosure procedures in aid of his investigations the plaintiff’s suspicions are largely just that, although perhaps soundly based on an understanding of family relationships and statements of the deceased.

Although a caveator generally bears a forensic burden to place before the Court evidence that allows the Court to form the view that the evidence shows that “there is a doubt as to whether [a] grant of probate or administration should be made”, rule 71(4) of the Probate Rules does not, in terms, speak in terms of any form of onus.

It certainly does not, as contemplated by Azzopardi v Smart (1992) 27 NSWLR 232, require a caveator to prove a “prima facie case” of the invalidity of a will, or something akin to that, without reasonable resort to disclosure orders routinely made in probate proceedings.

Leaving aside broader contextual facts about family relationships and statements attributed to the deceased, there are three features of the present proceedings that incline me to the view that, even on the state of the evidence as presently available, “there is a doubt as to whether a grant of probate should be made at least in respect of the 2014 will”.

First, there is doubt in my mind as to whether the deceased truly “knew and approved” the term of either the 2014 or the 2012 will having regard to the infelicity of the provisos to the gifts made in those wills.

Secondly, although the solicitor for the plaintiff (and possibly the plaintiff himself) has actual knowledge of the circumstances in which each of the 2014 and 2012 wills was prepared and executed, written requests made by the solicitor for the defendant for information about the deceased’s estate and testamentary instruments, no such information was provided beyond reluctant provision of a copy of each of the 2014 and 2012 wills.

Thirdly, the plaintiff’s application for an order that the defendant’s caveat cease to be in force, and his strident opposition to the defendant being allowed any latitude in investigation of the deceased’s affairs, of themselves create suspicion on the part of the Court that the plaintiff may have something to hide, to put the point colloquially (but perhaps too strongly).

There is no suggestion in these proceedings that some form of privilege attaches to evidence about the circumstances in which the 2014 and 2012 wills were executed. Nor could there be in light of the principles flowing from In the Estate of Fuld, Deceased; Hartley v Fuld (Attorney-General Intervening) [1965] P 405 at 409-411 which establish that, because of the public interest in an orderly succession to property, a witness of the circumstances in which a will was executed may be regarded as a witness of the Court, rather than of a party. See Re Estate Pierobon, deceased [2014] NSWSC 387; Boyce v Bunce [2015] NSWSC 1924 at [145] et seq; and Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [60](f) and [89]-[90].

In the present proceedings, the solicitor for the defendant made written requests for information from the solicitor for the plaintiff which might be characterised as Larke v Nugus letters by reference to a judgment of the English Court of Appeal in Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033, extracted in Re Estates Brooker-Pain and Soulos at [83]:

The sentiments there expressed are commended even though in Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [87] I expressed reservations about the practical application of the Court of Appeal’s statement of principle.

A consideration of Larke v Nugus gave rise to the concept of a “disclosure affidavit” as an ordinary case management order at an early stage of probate proceedings.

I am satisfied, by reference to rule 71(4) of the Probate Rules, that the evidence shows that there is a doubt as to whether a grant of probate or administration should be made in respect of each of the wills of the deceased dated 10 July 2014 and 3 February 2012.

I am satisfied that the plaintiff’s notice of motion filed on 16 July 2025 seeking an order that the defendant’s caveat cease to be in force should be dismissed and that the plaintiff’s application for a grant of probate should proceed on pleadings as a contested suit.

The form of the wills, in the context of the deceased’s family relationships, of itself raises a doubt about whether she knew and approved the terms of the wills. The plaintiff bears the onus of persuading the Court at a final hearing that she did. His forensic decision to restrict the information available to the defendant at this stage of the proceedings does nothing to dispel any doubt, attending the form of the wills.

Although I do not regard it as necessary for the defendant to have the benefit of the Court’s case management disclosure orders before my determination that the plaintiff be required to file a statement of claim, I am satisfied that the defendant should have the benefit of those orders (not extending to subpoenas for the production of documents directed to third parties such as doctors, hospitals or the like) before he is required to file a defence and any cross claim he may be advised to file.

Subject to allowing the parties an opportunity to be heard about the form of orders and costs, I propose to make orders to the following effect:

My present inclination is to defer until after the defendant files a defence, and any cross-claim, the question whether (and, if so, when) subpoenas addressed to third parties should be permitted.