Fuda v Dawes

These proceedings are an application for preliminary discovery. The plaintiff is Lina Fuda, who was for around 40 years a close friend and, for many of those 40 years, a next-door neighbour, of the late Kenneth Hambridge (the deceased). The deceased died on 28 June 2025.

By a Summons filed on 3 November 2025, the plaintiff seeks an order under r 5.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the defendant, Rhonda Dawes, give discovery of various documents in the possession of Benjamin & Robinson Lawyers, the firm of solicitors formerly retained by the deceased, that relate to the preparation and execution of two wills (or putative wills) made by the deceased. The plaintiff seeks no other relief in her Summons.

The Summons expressly identifies one of the wills in relation to which documents are sought as being dated 12 March 2019 (the 2019 Will). Probate of the 2019 Will was granted to the defendant, the executor named under the 2019 Will, on 23 September 2025 (the Grant).

The plaintiff submitted that the documents in the possession of Benjamin & Robinson Lawyers are considered to be in the “possession” of the defendant by virtue of the defendant’s status as executor of the estate of the deceased (TR P1 L26-32).

The other will (or wills) in relation to which discovery is sought is (or are) somewhat less precisely identified in the Summons. Discovery is sought over documents related to “any wills drafted and/or executed in or around January 2017”. Based on the evidence, it appears there was a will executed by the deceased on 27 January 2017. There were two pieces of evidence which allow me to be satisfied of this. First, the plaintiff tendered a diary entry from the deceased’s diary which indicates he went to see Benjamin & Robinson Lawyers on 27 January 2017. The entry indicating he had an appointment at that firm is actually written in the box for 28 January 2017, but the entry is circled and there is an arrow extending from the circle pointing to the box for 27 January 2017.

Second, the defendant tendered a photograph of a custody packet located by Benjamin & Robinson Lawyers. The packet and the index bear the name of the deceased. Item 5 of the handwritten indexes that were on both the outside and inside of the packet reads “Original Will dated 27-1-17”. The index to the custody packet evidence also appears to indicate there was only one will executed in 2017.

Notwithstanding this, I acknowledge there is a possibility, albeit one that is best described as “slim”, that there were multiple wills drafted and/or executed in or around January 2017. However, it appears the plaintiff is clearly interested in the will executed on 27 January 2017. I will refer to this other will of the deceased as the 2017 Will.

The plaintiff has not yet decided whether to commence proceedings substantively against the defendant. The plaintiff seeks an order for preliminary discovery in the terms contained in the Summons to enable her to assess whether she should bring a claim to revoke the grant of probate made in respect of the 2019 Will and propound the 2017 Will (PWS [6]).

The hearing of the Summons was set down for an estimate of 2 hours on 1 April 2026. The hearing was commendably completed within an hour and a half. Dr S Chapple SC appeared for the plaintiff and Mr L Ellison SC appeared for the defendant.

The only affidavit evidence formally read and relied on by the plaintiff was an affidavit by her, affirmed 29 October 2025 (Fuda affidavit). That evidence included a copy of a draft Will document (see below), the 2019 Will, as well as correspondence passing between the solicitors for the plaintiff, Glass Goodwin Solicitors, and the solicitors for the defendant, Benjamin & Robinson Lawyers. Benjamin & Robinson Lawyers is the law firm that prepared the draft Will document and was associated with the execution of the 2019 Will and the 2017 Will.

At the hearing, the evidence mentioned in [5] and [6] was tendered, along with further correspondence between the solicitors was tendered by the plaintiff.

The plaintiff was required for cross-examination and was duly cross-examined by senior counsel for the defendant following the reading of the plaintiff’s affidavit. There was no re-examination.

Each of Dr Chapple SC and Mr Ellison SC provided helpful written submissions in advance of the hearing. I will refer to the written submissions provided by the plaintiff and defendant, respectively, as PWS and DWS. Each senior counsel also made oral submissions.

Having regard to all of the circumstances, and for the reasons to follow, I am of the view the plaintiff is entitled to preliminary discovery, essentially in the terms sought in the Summons.

The legal principles to apply in relation to an application for preliminary discovery are well settled. The leading authority is O’Connor v O’Connor [2018] NSWCA 214 (O’Connor), which sets out the relevant rule of the UCPR and the legal principles to be applied in applications of this nature (at [19]-[22]):

The matters set out at paragraph [21] of O’Connor have been referred to as the “five limb test” (the O’Connor limbs) (see Silva Fortune Pty Ltd v Nuvei Global Merchant Services Pty Ltd [2025] NSWSC 699 (Silva Fortune) at [3] (Peden J)).

In relation to the terms of r 5.3(1)(a), in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69, McColl JA (with whom Sackville AJA “generally” agreed) stated at [51]-[52] (emphasis added):

That an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences does not appear to be a controversial proposition. Many judges at first instance have said as much: eg, Morton v Nylex Ltd [2007] NSWSC 562 (Morton) at [33] (White J); Murray v Wheeler [2013] NSWSC 137 at [43] (Bergin CJ in Eq), Pioneer Energy Holdings v Seth [2014] NSWSC 492 (McDougall J) at [34]-[36], B & J Hudghton Investments Pty Ltd as trustee for the B & J Hudghton Family Trust v Lakeba Group Limited [2022] NSWSC 830 at [21] (Rees J) and Silva Fortune (Peden J) at [6].

In relation to what an applicant will need to show before an order for preliminary discovery is made, it has been held that an applicant must show that the documents sought are “reasonably necessary” to make a decision. For example, in Morton, White J stated (at [33]):

In essence, the plaintiff is seeking the will file of the solicitors who made the 2017 Will and witnessed the 2019 Will. In this context, the plaintiff submitted that this Court has recognised the importance in probate proceedings of disclosing a solicitors will file at an early stage (PWS [15]) and cited the decision of Lindsay J in Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 (Brooker-Pain) in support of that submission.

Relevantly to the issues before the Court in this application, including associated issues as they relate to practice notes, in Brooker-Pain, Lindsay J stated the following at [42]-[45] (with particular reference to Practice Note SC Eq 11):

In relation to issues of practice and procedure which arise more generally in probate proceedings, in Brooker-Pain, Lindsay J made several pertinent observations as set out below, which bear reproduction in full:

Also having regard to the probate context of this application, the defendant cites as having “possible relevance” (DWS [5.7]) the terms of [20] and [30] of Practice Note SC Eq 7 (PN 7), which I will reproduce below:

Having regard to the legal principles set out above, the Court will be required to be satisfied in relation to the O’Connor limbs before it makes an order under r 5.3(1).

Of the O’Connor limbs, the defendant did not dispute, and I accept, that the first and second O’Connor limb had been made out (TR P19 L39-42). The plaintiff clearly may be entitled to bring a claim for relief and based on the correspondence annexed to the Fuda affidavit, reasonable inquiries to obtain sufficient information to decide whether to commence proceedings have been made by the plaintiff have been made.

The defendant also did not dispute that the defendant (as the prospective defendant in a claim to revoke the grant of probate concerning the 2019 Will) possessed information which could assist in determining whether the applicant is entitled to make a claim for relief (TR P19 L45-46). In the correspondence passing between the plaintiff’s and the defendant’s solicitors annexed to the Fuda affidavit, it is admitted that Benjamin & Robinson Lawyers has file notes and other documents concerning the entry into the 2019 Will. I also consider it likely the defendant has possession of further potentially useful documents in relation to both the 2017 and 2019 wills, given that Benjamin & Robinson Lawyers were retained by the deceased and in all likelihood have a will file in relation to their dealings with the deceased. The defendant does not deny that Benjamin & Robinson Lawyers have such a will file in relation to the deceased. The fourth O’Connor limb has been made out.

As to the fifth O’Connor limb, the defendant also admitted that inspection of the documents possessed by the defendant would assist the plaintiff in determining whether to commence proceedings (TR P19 L46-47). Even without the defendant’s concession, I accept that inspection of the documents in the defendant’s possession would assist the plaintiff to make the decision as to whether or not to commence proceedings. My reasoning for this satisfaction, while not separately set out, is essentially the same reasoning as to why I consider the documents would be reasonably necessary for the plaintiff’s determination of whether to commence proceedings. The fifth O’Connor limb has been made out.

The sole remaining real issue in dispute was as to whether the plaintiff already had “sufficient information” to decide whether or not to commence proceedings. The plaintiff says she does not (PWS [17]). The defendant says the plaintiff does and that the plaintiff ought to commence proceedings (DWS [5.14]).

Accordingly, the only question that requires resolution is this: does the plaintiff already have “sufficient information” to decide whether or not to commence proceedings against the prospective defendant?

The parties’ submissions and the context to the potential proceedings which may be commenced by the plaintiff must be understood against a broader factual background, namely by an appreciation of aspects of the relationship between the deceased and the plaintiff. I will set out some of that background, which is derived from the evidence given by the plaintiff in her affidavit and in the witness box under cross examination. There did not appear to be any serious dispute as to the background facts, at least for the purposes of this application.

As discussed earlier, the deceased appears to have made a will in around January 2017 (ie, the 2017 Will). The deceased’s diary indicates:

A copy of the 2017 Will has not been located. In response to a request for information, Benjamin & Robinson Lawyers, in a letter dated 28 August 2025, stated that “the previous will” prior to the 2019 Will (which must be a reference to the 2017 Will) was shredded upon instruction, and that no copy was retained. On 30 September 2025, Benjamin & Robinson Lawyers subsequently produced a document, which they describe in their covering letter as “an electronic copy of an undated and unsigned draft Will of the deceased” (the draft Will document).

The terms of the draft Will document were such that the deceased had appointed his cousin Ronald Alfred Whitlock as his executor and trustee and gave the whole of his estate to Mr Whitlock and the plaintiff in equal shares. The evidence discloses Mr Whitlock predeceased the deceased.

In or around May 2017, the plaintiff took the deceased to see a doctor for the primary purpose of renewing his medication and inspecting his eye. At that time, the doctor preformed a memory test and suggested further cognitive assessment of the deceased be undertaken. Further assessment was undertaken in July 2017, at which time the assessing doctor considered it likely that the deceased had mild dementia.

In October 2017, the deceased had a stroke, was hospitalised, and was diagnosed with dementia. In November 2017, the deceased was made the subject of guardianship and financial management orders. The plaintiff gave evidence she was “involved” in the hearing or hearings which took place at the NSW Civil and Administrative Tribunal (NCAT), was present at the NCAT hearings, and knew the orders had been made (TR P4 L16-31).

In or around January 2018, the deceased was moved from hospital to a dementia-specific ward at an aged care facility.

The plaintiff gave evidence she regularly visited the deceased at the aged care facility he was moved to (TR P3 L47-48).

The deceased subsequently made the 2019 Will, which appointed Mr Whitlock and his daughter, the defendant, as executors and trustees. The estate was divided 25 percent to the plaintiff, and 75 percent to Mr Whitlock, his wife Sarah Whitlock, and their two children, the defendant and Debra Hermann, as tenants in common in equal shares (PWS [3]). As mentioned earlier, the evidence discloses Mr Whitlock predeceased the deceased.

The 2019 Will is handwritten using what the plaintiff called a “will kit”. It is witnessed by two solicitors, Christian Kolmac and Carly Jaye Patrick. At the time, both Ms Kolmac and Ms Patrick were solicitors at Benjamin & Robinson Lawyers (PWS [4]). I note that as at the time of the hearing, those persons are still solicitors at Benjamin & Robinson Lawyers, as each of their names appear on the filed copy of DWS.

As already noted, the Grant was made on 23 September 2025. In her written submissions, the plaintiff stated that according to the Inventory of Property annexed to the Grant, the deceased’s estate was worth “in the order of” $7,800,000 at the time of his death (PWS [5]).

I note in passing that in relation to this asserted estimated value of the estate, while the evidence discloses that the plaintiff was provided with a copy of the Inventory of Property, a copy of the Inventory of Property does not appear to have been included in the evidence before me. I have gathered this omission was inadvertent. No issue was taken by the defendant as to the valuation as asserted in the plaintiff’s written submissions. In any event, the nature and value of the estate was not relied on as a material issue in support of the claim made by the plaintiff. I have included the estimate by way of context only, and do not consider that anything I need to decide turns on this issue.

The plaintiff seeks the documents referred to in the Summons to allow her to determine whether or not to bring a claim to revoke the Grant in relation to the 2019 Will and to propound the 2017 Will (PWS [6]).

In her written submissions the plaintiff says she faces a difficulty in determining whether to commence proceedings as there is significant uncertainty in four main areas (PWS [12]). Those four areas are as follows.

The plaintiff submits that her standing to commence proceedings depends on the existence of the 2017 Will, and whether it was executed in the form of the draft Will document provided by Benjamin & Robinson Lawyers. The plaintiff accepts that Benjamin & Robinson Lawyers assert it has retained no file notes of any instructions given by the deceased.

The plaintiff considers, however, that evidence which will likely be determinative of the question of the existence (and terms of) the 2017 Will would include any safe custody records, and any time recordings or narratives recorded in any invoices issued by Benjamin & Robinson Lawyers in respect of the preparation of the 2017 Will. Without that evidence, the plaintiff says she cannot with any degree of comfort say she has standing to revoke the Grant and propound the 2017 Will (PWS [12(a)]).

Orally, in light of the further evidence which was tendered by the defendant, the plaintiff accepted that the Court could draw an inference that a will was executed in 2017 (TR P14 L14-18, P15 L38-40) but she still cannot know whether the 2017 Will was executed in the form of the draft Will document. She elaborated on her written submissions that even documents such as billing records could be of assistance to her in addressing this area of uncertainty, as they can indicate what was actually drafted at the time (TR P15 L40-43).

Benjamin & Robinson Lawyers assert in correspondence that the 2017 Will was destroyed. The plaintiff submits it is not clear when that occurred and in what circumstances.

The plaintiff says her case (and her prospects of success) will be materially different if the 2017 Will was destroyed contemporaneously with the execution of the 2019 Will, or not. The plaintiff submits that those questions will be informed by any file notes, safe custody records, or correspondence with the deceased (PWS [12(b)]).

The plaintiff accepts she is aware of evidence of the deceased’s declining cognition.

However, the plaintiff submits she is entirely unaware of how that declining cognition impacted upon his approach to the testamentary task, including his knowledge and understanding of his assets, his ability to call to mind beneficiaries, and to weigh their competing claims. The plaintiff says that any conclusions she might have drawn from her own knowledge, and inferences to be drawn from the form of the 2019 Will itself, are little more than “educated speculation”. The plaintiff submits that the circumstances in which the 2019 Will came to be prepared, what involvement (if any) that the two solicitors who witnessed the will had in its preparation, what instructions (if any) that the deceased provided, and the circumstances in which the 2019 Will was executed (including who was present) are critical to the assessment of the deceased’s capacity (PWS [12(c)]).

In her oral submissions, the plaintiff additionally submitted that while the plaintiff has her own observations of what the deceased’s cognition may have looked like, she has no personal knowledge of how that cognition affected the deceased’s approach to the testamentary task (TR P16 L40-45).

The plaintiff submits the 2019 Will is a “curious document in that it is handwritten and prepared using a ‘will kit’ form.” The plaintiff submits that one inference that might be drawn from such a document is that it was prepared without the benefit of legal advice. If that was the case, the plaintiff submits there may be powerful arguments that the circumstances in which the will was executed arouse the suspicion of the Court.

The plaintiff observes, however, that the 2019 Will was witnessed by two solicitors from Benjamin & Robinson Lawyers and submits it is unknown what involvement those solicitors had in the preparation of the document. The plaintiff submits that the extent of their involvement may reduce the level of suspicion aroused of the Court. The plaintiff submits that the circumstances in which the 2019 Will was prepared and instructions given, and how it was executed, are relevant to the assessment of whether the deceased knew and approved of the 2019 Will (PWS [12(d)]).

In making this application, the plaintiff says she seeks information to determine whether there are defences that might defeat her claim to revoke the Grant. The plaintiff submits that Areas 1 and 2 go to whether any defence of lack of standing might be raised, and the strength of that argument. Areas 3 and 4 go to the possible defence that the 2019 Will was the “product of careful instructions conveyed to an independent and experienced solicitor who conducted a careful and thorough interview of the deceased” (PWS [13]).

The plaintiff submits that, put simply, in the absence of the information requested, she is “left to determine by inference, speculation and conjecture whether to commence proceedings.” She submits she is “not able to begin (in any meaningful way) to assess, first, whether she has standing to make a claim, and secondly, the prospects of that claim (including the merits of any defences), without access to the information contained in the will files held in respect of the 2017 Will and the 2019 Will” (PWS [14]).

Additional to the submissions set out above, the plaintiff also relies on the circumstances of this application being made in the context of prospective probate proceedings. In particular, the plaintiff cites and relies on what Lindsay J stated in Brooker-Pain (at [44] and [76]), wherein his Honour recognised the importance in probate proceedings of disclosing a solicitor’s file at an early stage.

As part of this submission, the plaintiff highlighted the comment of Lindsay J that there was a need to limit the unreasonable use of “discovery processes” to “construct a speculative case.” The plaintiff submits that this caution does not apply in relation to her application, particularly as she is not seeking any medical records or other voluminous third-party records. The plaintiff reiterates that the documents sought are limited to the solicitor’s file, which the plaintiff submits “should be readily obtainable and identifiable”. In this, the plaintiff submits the production of the will file will be consistent with orthodox probate case management principles (citing Brooker-Pain at [93]-[98]).

In oral submissions, the plaintiff cited another decision of Lindsay J, where the Court considered case management principles and the exercise of the Court’s probate jurisdiction in the context of a probate caveat, namely, his Honour’s judgment in Re Estate Barzacca [2025] NSWSC 1252 (Barzacca) (TR P17 L27-P 18 L48). In particular, the plaintiff relied on the following paragraphs from Barzacca:

The plaintiff contended that the circumstances of Barzacca are analogous to those currently before the Court. In Barzacca, the Court ordered that the plaintiff and his solicitor provide to the Court a copy of what was essentially the solicitor’s will file.

Having considered the application, while Lindsay J did not regard it as necessary for the defendant to have the benefit of the Court’s case management disclosure orders before his Honour made a determination that the plaintiff in Barzacca be required to file a Statement of Claim, his Honour was satisfied the defendant in that case should have the benefit of those orders before he was required to file a defence and any cross claim he may be advised to file. Accordingly, the Court proposed to make an order for the filing of a Statement of Claim (Order 2). The plaintiff was then to file and serve a “disclosure statement” (Order 4) and, with his solicitor, otherwise produce to the Court various documents pertaining to the deceased person in Barzacca, including the will file concerning the deceased (Orders 5 to 9).

The defendant resists the production of the documents sought, and submits that in making the application, the plaintiff seeks to “avoid the harsh and immediate consequences of the restriction on production as embodied in [PN 7]”. The defendant submits that it is clear that PN 7 “wishes proceedings to be commenced and evidence to be served prior to the issue of notices and subpoenae” (DWS [5.8]).

The plaintiff has indicated in her affidavit the information she already has available and sets out the steps she has taken to date to obtain more information. In relation to this information, the defendant submits that the plaintiff has indicated that she has copies of the 2017 Will and the 2019 Will, and that she clearly knows of her entitlement under those Wills and the identity of the executor of the 2019 Will (DWS [5.10], TR P21 L24-25, P22 L41-45).

Also, the defendant notes the plaintiff has knowledge stemming from her own personal dealings with the deceased, including observations of him in a number of circumstances including medical practitioner appointments, and knowledge of guardianship and financial management matters concerning the deceased (DWS [5.11], TR P21 L19-24).

The defendant submits it is not clear from the plaintiff’s application and evidence what information the solicitors have which she does not have, nor what information she needs (from them or anyone else) to commence proceedings. The defendant submitted this application is a “novel but incorrect attempt to avoid the usual means by which probate or family provision or other estate litigation is conducted.” The defendant says the plaintiff has all the information she wants (DWS [5.12]-[5.14]), by which I infer the defendant submits the plaintiff already has sufficient information on which to decide whether to commence proceedings.

In her oral submissions, in addition to reiterating much of what was put in writing, the defendant focused on why the Court should deny the plaintiff’s application as a matter of discretion. The defendant submitted that, to her counsel’s knowledge, “this is the first time the discovery rules have been used to find out something about a probate case to help the plaintiff make a decision” (TR P20 L9-10, P23 L47-49). The defendant’s submissions reiterated that PN 7 was what enabled the efficient disposal of probate matters (TR P21 L5-6), and that it would be “radical” to now depart from the established practice of the probate jurisdiction as embodied in PN 7 to allow the plaintiff to obtain the will file before proceedings were formally commenced.

The defendant orally submitted that, beyond the plaintiff already knowing enough to commence proceedings, it is unlikely any further information would be likely to change the plaintiff’s views as to whether she would commence proceedings (TR P23 L7-32). She also submitted that there is also unlikely to be much further information that could be obtained from the defendant if the relief sought by the plaintiff was granted (TR P20 L20-P21 L3).

I am satisfied that the plaintiff is entitled to preliminary discovery, in that I accept that she does not yet have sufficient information to decide whether or not to commence proceedings against the prospective defendant. In coming to this conclusion, I am of the view that the documents the plaintiff says she is lacking (and accordingly seeks) are “reasonably necessary” for her to make the relevant decision. I have come to this conclusion for reasons set out below.

I do not accept the submission made by the defendant that the plaintiff has a copy of the 2017 Will (DWS [5.10]). What the plaintiff does have is a copy of the draft Will document, and a copy of an Index to a custody packet (which was only produced at the hearing) that, one may infer, once held the original of the 2017 Will. However, on the basis of the evidence before the Court in this application, I do not consider there is a proper basis on which to infer that the draft Will document is simply an undated and unsigned version of the executed 2017 Will. In my view, the documents sought by the plaintiff are reasonably necessary for the plaintiff to form a view as to whether the will which was executed in 2017 was in the same terms as the draft Will document.

Further, I accept the submission that the plaintiff’s case will be materially different if the 2017 Will was destroyed contemporaneously with the execution of the 2019 Will, or not, and whether any instructions to destroy where made after the deceased’s diagnosis of dementia. I am satisfied that documents going to timing and circumstances of the instructions to destroy the 2017 Will are reasonably necessary for the plaintiff to consider whether to commence proceedings, and the nature of those proceedings.

It might be, as the defendant submits, there is not much further information provided by whatever is produced. For example, the documents produced may not resolve the uncertainty as to the very existence of the 2017 Will or contain no records as to the circumstances of its destruction. Whether that is so is speculation. But even then, the plaintiff (or, for that matter, the Court) does not know what is in the solicitor’s will file at the moment. That is the very shortcoming of the plaintiff’s current knowledge which she seeks to overcome by this application. The plaintiff at this stage has little to no information about the creation or destruction of the 2017 Will. Even being able to confirm that there may be no further information on the file about the making or destruction of the 2017 Will seems to me to be reasonably necessary for the plaintiff to enable her to decide whether to commence proceedings, given that would assist the plaintiff in assessing the strength of any defences that may be put up against any claim, or even assessing whether the plaintiff could in fact establish her case at all (if the contemporaneous documentation in the will file sheds no light on the final form of the 2017 Will or on its destruction).

If one considers that the solicitors’ files have some more information about the circumstances surrounding the making or destruction of the 2017 Will, the utility of the documents in being able to assess whether to commence proceedings is even more obvious.

The short point is this: the evidence establishes the plaintiff does not know, with certainty, what the terms of the 2017 Will are, and it appears she certainly does not know the circumstances in which it was destroyed. Despite asking Benjamin & Robinson Lawyers for their relevant documents, she is none the wiser about those matters. Information about what the terms of the 2017 Will were (particularly whether they aligned with those of the draft Will document), about whether the 2017 Will was revoked prior to the 2019 Will and, if so, when and how that occurred, would be reasonably necessary to assist the plaintiff to assess whether she should commence proceedings. It follows she is lacking sufficient information to make the decision whether or not to commence proceedings against the defendant and, given the defendant’s other admissions, she is entitled to preliminary discovery in relation to the documents pertaining to the 2017 Will.

I accept, on the one hand, that the handwritten will is a “curious” document, and that there may be available an inference that it was prepared without the benefit of legal advice. On the other hand, two solicitors witnessed the execution of the 2019 Will, in which case this inference would not necessarily be justified. I am satisfied that documents going to the circumstances in which the 2019 Will was prepared, and what involvement (if any) the two solicitors who witnessed the will had in its preparation, as well as the instructions (if any) provided by the deceased concerning that will, are reasonably necessary for the plaintiff to assess whether to commence proceedings.

I also accept, for the purposes of this application, that in circumstances where the deceased had a diagnosis of dementia and was the subject of guardianship and financial management orders, there may be a doubt as to whether the deceased had the mental capacity to make the 2019 Will. However, it may be the case that the documents sought in relation to the circumstances surrounding the drafting and execution of the 2019 Will provide information as to any defence to an allegation of either testamentary incapacity, or lack of knowledge and approval. In this, I am satisfied the documents sought by the plaintiff are reasonably necessary for the plaintiff to consider defences available to the defendant and, accordingly, whether she wishes to commence proceedings as a consequence of that information.

In coming to this view, I have considered that the plaintiff was in a position to make her own observations of the deceased at the material times. However, as submitted by the plaintiff, those observations will not include other legally relevant observations such as whether the deceased had an awareness of his assets, and the like, as well as observations of the circumstances of the will making process itself, which is information peculiarly within the knowledge of the defendant (or, more accurately, her solicitors), and which is information critical for any consideration of the potential defences available to the defendant. The plaintiff might have enough information to enable her to say there might be a doubt of the deceased’s cognition at the time of the 2019 Will. But those more general observations are insufficient to enable the plaintiff to assess whether to bring a claim suggesting a lack of testamentary capacity, given the particular considerations at play when a court comes to assess whether a testator had capacity to make a will as the plaintiff identified in her submissions.

I have also had regard to the submission of the plaintiff that, without more, the circumstances of the handwritten 2019 Will might well raise powerful arguments that the circumstances in which the will was executed arouses suspicion. However, and alternatively, what is known from the face of the 2019 Will is that two solicitors witnessed the 2019 Will. In these circumstances there might well be a logical and reasonable explanation of what might otherwise be considered a suspicious circumstance. As with the other matters raised by the plaintiff, I am satisfied the documents sought are reasonably necessary for the plaintiff to consider the defences available to the defendant before commencing proceedings.

In being satisfied as I have, I have borne in mind the submission made by the defendant that the terms of PN 7 were of possible relevance. I recognise that preliminary discovery cannot be used to build up a case which an applicant has already decided, or could decide, to bring (see [19] above). Further, I seek to ensure there is a “proper brake on any excesses”, noting that the discretion under r 5.3 is to be exercised in the particular circumstances of each case (see paragraph [17] above).

Specifically in relation to PN 7, I acknowledge that a Practice Note will generally govern or guide the way in which proceedings are expected to be administered. However, I also note Practice Notes do not have the force or status of a statutory rule, and that there may be circumstances that arise whereby the terms of a given Practice Note are departed from (United Crib Blocks Construction Pty Ltd v Asmaro [2025] NSWSC 1156 at [54]-[65]).

I am of the view that the unusual circumstances of this case justify the making of the order I propose to make.

In coming to the conclusion that the plaintiff is entitled to preliminary discovery, and in exercising the Court’s discretion under r 5.3 UCPR, I have had regard to s 56 of the Civil Procedure Act 2006 (CPA), which relevantly provides:

More specifically, I bear in mind the statutory requirement to seek to give effect to that overriding purpose of the CPA in applications for of this type (see Rinehart v Nine Entertainment Co Holdings Ltd [2015] NSWSC 239 at [35] (Garling J), as well as Steffen v ANZ Banking Group [2009] NSWSC 666 at [116] (McDougall J) and In the matter of Moula Money Pty Limited [2023] NSWSC 1434 at [199] (Williams J)).

In seeking to give effect to the overriding purpose in this application, I am of the view that the making of a preliminary discovery order will facilitate the just, quick and cheap resolution of the real issue in the proceedings. I have accepted the submission of the plaintiff that material areas of uncertainty currently exist in relation to the information she has available, which means she lacks information that is reasonably necessary to make a decision in relation to the commencement of proceedings.

Would withholding preliminary discovery facilitate the just, quick and cheap resolution of the real issues in the proceedings? There may be a neat question to be asked about what “the proceedings” in s 56 means in this context – is it strictly the preliminary discovery application itself, or is it the prospective substantive proceedings between the parties? It probably does not matter and, as I was not addressed on this, I will not resolve that question.

The defendant accepted there is a practice in this Court where a solicitor who “created or had a part in facilitating” a will “puts on an affidavit to the facts and circumstances by which instructions were received and the will duly executed” (TR P20 L16-19; see Brooker-Pain at [93]-[98]). The defendant was also the party who referred to [20] of PN 7, which expressly provides that the Registrar in Probate may give directions for the return of subpoenas or notices to produce to bring within the Court’s control, amongst other things, the files of solicitors who prepare or supervised the execution of testamentary instruments.

Based on the Court’s practice in probate litigation, including that embodied in [20] of PN 7, it would seem likely that, assuming the plaintiff commenced proceedings, at some point the plaintiff would be entitled to the kinds of documents she seeks by this preliminary discovery application. The defendant certainly did not contend that the plaintiff would not get the will file from Benjamin & Robinson Lawyers. It is not unlikely the plaintiff may get that will file sooner rather than later. If the discretion to grant preliminary discovery can be affected by the types of documents sought, I consider that as the documents sought in this application are of a kind which is typically produced early in probate cases, that weighs in favour of the plaintiff. If one accepts the plaintiff would, if she commenced proceedings, eventually get documents of the kind she seeks, then, in my opinion, it would be inimical to the just, quick and cheap resolution of the real issues in proceedings to require the plaintiff to first commence proceedings and incur more costs before she gets the will file. Given I have already concluded that I consider the plaintiff does not have sufficient information to commence proceedings in the first place, it is admittedly repetitive to say that giving the plaintiff the documents she seeks now will be utile given it will enable the plaintiff to assess her prospects before putting herself and the defendant to any expense by conducting further proceedings, especially if what is disclosed might demonstrate there are strong defences to the plaintiff’s claims.

Save for the matter discussed below, there is no other separate discretionary consideration that would tend against the plaintiff obtaining the relief she seeks.

The plaintiff in her written submissions said that the production of the will file, in allowing the plaintiff to access the prospects of the case at an early stage, is consistent with (and not counter to) orthodox probate case management principles, citing the statements made by Lindsay J in Brooker-Pain.

I read these submissions as simply observing that what the Court is being asked to do in these proceedings is not inconsistent with what would happen in the usual course of probate litigation. I accept that submission and accordingly consider that to weigh in favour of the plaintiff obtaining the relief she seeks.

The defendant at numerous points in her submissions suggested that the use of preliminary discovery procedures in probate litigation is atypical. In her written submissions, she described the plaintiff’s application as “incorrect” and “novel” (DWS [5.13]). Orally, the defendant sought to draw distinctions between probate litigation and commercial litigation, namely to say that getting documents before the commencement of substantive proceedings is something done in commercial litigation, but not in wills and estates litigation (TR P20 L8-14, P22 L36-40, P23 L44-P24 L5). She emphasised the need for a “court case” to start before disclosure of the will file and other documents was warranted. The decision of Barzacca, where the proceedings at the stage of his Honour’s judgment comprised only of a caveat which was preventing a probate application, was explained as Lindsay J “turn[ing] it [the proceedings] into a court case” (TR P21 L40-41).

The defendant additionally submitted that the plaintiff was attempting to extend the application of probate case management principles, as described by Lindsay J in Brooker-Pain, beyond the early stages of proceedings (or very early stages, like in Barzacca) to before proceedings even commence (TR P24 L3).

To be very clear, I do not think the plaintiff’s submissions (or my acceptance of them) suggest that whatever case management principles apply in the sphere of probate litigation ought to have some extended application prior to the commencement of proceedings. I read the plaintiff’s submissions as simply comparing her position with the position she might have been in had she commenced her substantive proceedings, to make the point that orthodox case management principles would have led to her receiving what she is asking for now.

To the extent the defendant submits that, in the context of contemplated probate litigation such as in this case, preliminary discovery should be refused on the basis of some consideration unique to probate litigation (or wills and estates litigation more generally), I reject those submissions.

For one thing, the defendant never clearly submitted why it would be unjustified in principle for a prospective plaintiff in prospective probate litigation to make use of the preliminary discovery provisions of the UCPR.

The UCPR applies to all kinds of litigation, spanning a diverse range of subject matter. That diverse range includes probate litigation. Probate litigation might require rules and practice notes of universal operation to be applied in a manner sensitive to the “idiosyncratic features” (to use Lindsay J’s words from Brooker-Pain at [60]) of such litigation. However, those rules still apply. In the absence of some specific principled reason as to why the Court should, as a matter of discretion, be more inclined to refuse a preliminary discovery application in the context of contemplated probate proceedings, r 5.3 of the UCPR applies according to its tenor. I accept the plaintiff’s oral submissions in reply which were to this effect (TR P25 L48-P26 L5).

I am not intending to foreclose any arguments in the future that might illuminate particular considerations for preliminary discovery applications concerning probate cases. But as it stands, none were made to me in any meaningful sense. I also cannot currently see myself what those special considerations ought to be in the context of preliminary discovery.

I can accept that an application of this kind in probate proceedings might be more uncommon as compared to other kinds of litigation. There may be one or several explanations for that being so. Just because this kind of application might be rare in the probate context does not mean the invocation of r 5.3 is “incorrect”.

For those reasons, I do not consider there are any discretionary factors arising from the context of the prospective litigation being probate proceedings which should tend against the plaintiff receiving preliminary discovery from the defendant.

The circumstances of this case are somewhat unusual. They have led to the plaintiff not even being able to confirm there is in fact a valid will for her to propound in the alternative to the 2019 Will. But the plaintiff also does not know at this early stage whether she even has a viable claim for impeaching the 2019 Will either.

I am satisfied that all five O’Connor limbs have been made out. The plaintiff has satisfied me that:

There is no good discretionary reason she should not be granted the relief she seeks. I will make an order that the defendant give the plaintiff preliminary discovery.

As is uncontroversial, s 98(1) of the Civil Procedure Act 2005 (NSW) (CPA) gives the Court a broad discretion with respect to costs, though that discretion is to be exercised judicially: Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218 (Stern and Ball JJA, Griffiths AJA); Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [136] (McColl JA, Sackville AJA and Adamson J agreeing).

The general rule is that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: UCPR r 42.1.

Whether a costs order departing from the general rule should be made will depend on the circumstances of the case viewed against the wide discretionary powers of the Court, which powers should be liberally construed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [8] (Beazley, McColl and Basten JJA); State of New South Wales v Stanley [2007] NSWCA 330 at [18] (Hislop J, Beazley and Tobias JJA agreeing).

Having regard to the circumstances of this case, viewed against the Court’s wide discretionary powers, I see no reason that costs should not follow the event. The defendant to the application did not seek to make any submissions to the contrary.

For the reasons set out above, I make the following orders: