Re Estate Capelin, deceased

The plaintiff (the executor named in a deceased person’s last, putative will) applies for an order, upon an exercise of probate jurisdiction, that a “general caveat” (against a grant of probate in the estate of the deceased without prior notice to the caveator) cease to be in force.

The question whether such an order should be made falls to be determined by reference, particularly, to Part 78 rule 71(4) of the Supreme Court Rules 1970 NSW (“SCR”), which is in the following terms (with emphasis added):

The plaintiff concedes that the caveator has an interest sufficient to give him standing to challenge admission of the deceased’s last, putative will to probate.

The plaintiff nevertheless contends that the caveat should cease to be in force because, he submits, the caveator has not adduced evidence sufficient to establish “a prima facie case” for opposition to admission of the will to probate.

The primary authority relied upon by the plaintiff in support of this contention is the judgment of Powell J in Azzopardi v Smart (The estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 238E.

The critical passage in that judgment relied upon by the plaintiff is the following (with emphasis added):

That this passage has generally been taken at face value within the legal profession is perhaps best illustrated by a passing reference to it by the High Court of Australia in Nobarani v Mariconte (2018) 265 CLR 236 at 249-295 at [45]. In the course of a finding that a caveator was denied procedural fairness when, at short notice, a hearing on a motion that caveats cease to be in force was conducted as a final hearing of the plaintiff’s summons for a disputed will to be admitted to probate, the High Court made the following observations:

It was not necessary for the High Court to give close attention to the reasoning of Powell J in Azzopardi v Smart; the meaning of the expression “prima facie case” in the context of a motion that a caveat cease to be in force; or the terms of the legislation (in particular, SCR Part 78 rule 71(4)) which currently governs the determination of such a motion. It was sufficient for the Court to refer to the caveat process “in broad terms”. Its point was that the hearing of a motion that a caveat cease to be in force imposed upon a caveator a far lighter forensic burden than would be encountered on a final hearing of an application that a will be admitted to probate.

The plaintiff contends that the Court is bound to make an order that the Caveator’s caveat cease to be in force and to direct that the last, putative will of the deceased be admitted to probate without further opposition on the part of the Caveator. This is based upon an assumption that the caveator is required to prove “a prima facie case”, and that it is open to him, forensically, to withhold from the Caveator information (other than evidence of the actual event of attestation) as to the circumstances in which the will was prepared and executed.

For his part, the Caveator contends that all that is required by SCR Pt 78 rule 71(4) to be done in order to sustain his caveat, and to allow the proceedings to continue as contentious business, is for him to demonstrate, on the evidence before the Court, “a doubt” as to whether the will propounded by the plaintiff “should” be admitted to probate without further investigation of the circumstances in which the will was prepared and executed. He contends that evidence of circumstances surrounding execution of the will, known to him and communicated to the Court, raise such a doubt, and that the refusal or failure of the plaintiff to adduce evidence about the particular circumstances in which the will was prepared reinforces the doubt.

In the administration of probate jurisdiction a procedural device of long-standing is a “caveat” against a grant of probate or administration (or the resealing of a grant) in respect of a deceased estate. A caveat is filed by a party who requires the Court to give the caveator notice of any application for a grant and, implicitly, an opportunity to be heard before any grant is made. Rules of court governing caveat procedures have varied over time, and vary between jurisdictions, but the underlying concept of a “probate caveat” (as a warning to the Court not to make a grant without notice to an interested party) has remained constant.

References to the caveat procedure can be found in Godolphin, The Orphan’s Legacy or a Testamentary Abridgement (London, 4th ed, 1701): Part I, page 30 and Part II, pages 101 and 258.

E V Williams’ A Treatise on the Law of Executors and Administrators (2nd American edition, 1841), in volume 1 at paragraph [396] includes the following observations (with emphasis added, omitting footnotes):

A contrast which nevertheless confirms the underlying concept, can be found in Burn’s The Ecclesiastical Law (London, 9th ed, 1842) where, on page 192 in volume 3, the following appears (with emphasis added):

Current NSW procedures are more disciplined than Phillimore (the editor of Burn and later a judge) here suggests. Nevertheless, the underlying concept of a “probate caveat” can once again be discerned.

The filing of a caveat may, in practice, be the first step taken by any party in (anticipation of) probate proceedings. A caveat is not, however, a form of originating process. It is an administrative step taken in anticipation of proceedings.

In current day NSW, probate proceedings are generally commenced by the filing of a “summons for probate” (if a grant in common form is sought) or a statement of claim (if a grant in solemn form is sought). If a summons for probate is filed before a caveat, the plaintiff may apply to the Court, by a notice of motion, for an order that the caveat cease to be in force; if such an order is not made, the plaintiff may, in the ordinary course, be ordered to file a statement of claim. If a caveat is filed before a summons for probate, the plaintiff ordinarily files a summons for an order that the caveat cease to be in force, the disposition of which summons might take the form of an order that the plaintiff file a statement of claim. As a matter of practice, a caveat and originating process are allocated the same “case number” in the records of the Court.

A caveat may be filed at any time before, but not after, a grant is made. After a grant is made any challenge to the grant requires an application that it be revoked. A grant made in error, in disregard of a caveat, may, on that ground alone, be revoked

Under the current legislative regime operating in NSW there are three forms of caveat: (a) a “general caveat” against a grant of probate or administration or resealing of a foreign grant; (b) a caveat requiring proof of a will in solemn form; and (c) a caveat concerning an informal testamentary instrument. The approved form of caveat (Form 141) requires a caveator to choose one of the three alternative forms in addition to a statement identifying the caveator’s claimed interest in the estate the subject of the caveat.

Kenneth Michael Capelin (“the deceased”) died on 13 July 2021, aged 77 years, leaving, so far as have been identified, three wills (respectively dated 18 December 2015, 27 March 2018 and 28 January 2020) and an estate with an estimated value of about $5.77 million

There is credible evidence that the deceased also made a will in or about 1993, but no such will has been located and nothing of consequence for present purposes turns upon its terms.

The deceased never married or had children of his own. He was predeceased by a partner of long standing (June Daisy Rowe) who died, on 20 December 2019, shortly before he made the 2020 will. He was survived by two brothers and, amongst others in his extended family, two nephews who are at issue in these proceedings. The plaintiff is a son of one brother. The Caveator is a son of the other brother. Both are solicitors.

By a summons for probate filed on 17 August 2021, the plaintiff (Andrew Peter Capelin), as the executor named in the will, applied to the Court for an order that the 2020 will be admitted to probate in common form. No application has been made by any party for an order that a special (interim) grant of administration be made to facilitate an orderly administration of the estate pending the making of a final grant, and no such grant has been made.

On 16 September 2021, the Probate Registry of the Court sent to the plaintiff a requisition drawing to attention the fact that, on that day, a caveat had been filed by Timothy Charles Capelin (“the Caveator”) pursuant to SCR Pt 78, the embodiment of the Court’s “Probate Rules”. The caveat was in the approved form of a “general caveat” (SCR Pt 78 rule 66, approved form 141) and claimed an interest in the estate of the deceased as a beneficiary under the lost 1993 will.

By a letter dated 20 September 2021 addressed to the plaintiff, the solicitors for the Caveator expressed concerns of their clients (the Caveator and two fellow relatives of the deceased) about the validity of the deceased’s last, putative will and requested specific information pertaining to the preparation and execution of the will, including the file of the solicitor who prepared the will; medical records relating to the deceased; and any formal capacity assessment made at or about the time the will was prepared. They also foreshadowed an intention to write to the solicitor and his associate (who attested the deceased’s execution of the will) to obtain statements from them as to the circumstances leading to the drafting and signing of the will. Their letter concluded with a statement to the effect that, upon receipt and review of the further information being sought, instructions would be taken as to whether the caveat would be maintained and the plaintiff would be required to propound the will formally.

By a letter dated 24 September 2021, the solicitors for the plaintiff responded, without the provision of any information, to the effect that the last, putative will was drafted by the senior of the two solicitors who attested the deceased’s execution of the document, he being an accredited specialist in Wills & Estates, and highly qualified. Pointedly, the letter concluded in the following terms:

The solicitors for the Caveator replied by a letter dated 27 September 2021, which included the following paragraphs:

The plaintiff’s response to that offer was to file and serve the notice of motion presently before the Court. Battle lines were drawn.

By a notice of motion filed on 28 September 2021, the plaintiff applied to the Court (under SCR Pt 78 rule 71) for an order that the caveat cease to be in force. In formal terms, it is this notice of motion which is presently before the Court for determination.

After a chain of correspondence (in which the solicitors for the Caveator relied upon section 54 of the Succession Act 2006 NSW as a foundation for a claimed entitlement in the Caveator to obtain a copy of wills of the deceased), the solicitors for the plaintiff on 26 October 2021 provided to the Caveator’s solicitors a copy of each of the 2015 and 2018 wills.

Other correspondence, in which the Caveator sought information about the deceased’s affairs, led inconclusively back to the plaintiff’s solicitors. Battlelines were maintained.

Section 54 of the Succession Act 2006 is in the following terms:

On 2 February 2022, the Caveator filed a second caveat (again in the form of a general caveat) in which he claimed an interest in the estate of the deceased as a beneficiary under the 2018 will.

Under “the Probate Rules” (SCR Pt 78), unless the Court otherwise orders, a general caveat lapses six months after the date upon which it is filed: SCR Pt 78 rule 69. On this basis, each of the Caveator’s caveats was current at the time of the hearing of the plaintiff’s motion.

The Caveator no longer relies upon the first of his caveats. It can be taken to have been withdrawn: Probate and Administration Act 1898, NSW (“PAA”) section 148; SCR Pt 78 rule 70. The hearing of the plaintiff’s motion proceeded implicitly on the basis of an order that any requirement for the filing of a formal notice of withdrawal of caveat be dispensed with: Civil Procedure Act 2005 NSW (“CPA”), section 14.

The hearing of the motion also proceeded on the basis, agreed between the parties and accepted by the Court, that the motion is to be taken (without formal amendment) as an application for an order that the second of the Caveator’s caveats cease to be in force. The Court’s powers extend to the making of such orders as the nature of the case may require: CPA section 90; Uniform Civil Procedure Rules 2005 NSW (“UCPR”), rule 36.1

It is commonly accepted that a caveator bears an onus of establishing each of the elements of SCR Pt 78 rule 71(4), but why that is so, and the precise nature of any such onus, are rarely examined as stand alone issues. Most debate focuses upon the words “interest” and “a reasonable prospect of establishing such an interest” in SCR Pt 78 rule 71(4)(a) and the words “doubt” and (to a lesser extent) “should” in SCR Pt 78 rule 71(4)(b). If there is such an onus, I would characterise it as a forensic onus to persuade the Court, by reference to the criteria in subparagraphs (a) and (b), to exercise the discretion implicit in the word “may” to decline to order that a caveat cease to be in force.

I hesitate to characterise such an onus as “legal” or “evidentiary” because, in case management of a motion for an order that a caveat cease to be in force, or on the hearing of such a motion, a caveator may apply for an order (or the Court may on its own motion order) that documentation be produced or information be disclosed by a person involved in the preparation or execution of a will, or any person with information material to administration of the deceased’s estate. Subpoenas and other discovery procedures are routinely available, within the control of the Court, in management of a probate case: Re Estates Brooker-Pain and Soulos [2019] NSWSC 671.

This is consistent with pursuit of the purpose of an exercise of probate jurisdiction. Probate proceedings may from time to time appear to be adversarial (when all interested parties are before the Court), but they are essentially inquisitorial in character because of the public interest inherent in ascertaining, and giving effect to, the testamentary intentions of a deceased person, the central personality in probate proceedings.

The object of an exercise of probate jurisdiction is to carry out a deceased person’s duly expressed testamentary intentions, and to see that beneficiaries entitled to a deceased estate get what is due to them, without undue delay: In the Goods of William Loveday [1900] P 154 at 157; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192. Probate disputes generally require disciplined case management, a requirement of long standing reinforced by the “guiding principles” enacted as Part 6 Division 1 (sections 56-60) of the CPA. Those guiding principles, and the powers conferred on the Court by the CPA, by the UCPR and by SCR Pt 78 rule 71(6)-(9), stand against the rigid application of rules of procedure in preference to ensuring that the real issues in dispute are determined: Gardiner v Hughes (2017) 54 VR 394 at [93]-[95]. SCR Pt 78 rule 71(6) and CPA section 56(1) both direct attention to a need to consider what procedural steps may be required for a “just, quick and cheap” disposition of proceedings.

Probate litigation is generally characterised as “interest litigation” because, to have the standing requisite to participation in probate proceedings (or, as SCR Pt 78 rule 71(4)(a) illustrates, to sustain a caveat), a party must have an interest in the outcome of the proceedings in the sense that the party’s rights will, or might, be affected by the outcome: Nobarani v Mariconte (2018) 265 CLR 236 at [49]; Gardiner v Hughes (2017) 54 VR 394; Gertsch v Roberts (1993) 35 NSWLR 631.

The terms of SCR Pt 78 rule 71(4)(a) are reflective of a degree of procedural flexibility in the rule in so far as the rule refers, not simply to demonstration in the evidence of “an interest”, but also to “a reasonable prospect of establishing such an interest”. The rule speaks at the time a decision is made by the Court, but it contemplates an assessment of the future course of proceedings.

The plaintiff (correctly) accepts that, by virtue of his interest as a beneficiary under the 2018 will, the Caveator has an “interest” in the estate of the deceased within the meaning of SCR Pt 78 rule 71(4)(a). Accordingly, the focus for attention is on SCR Pt 78 rule 71(4)(b).

On the hearing of the plaintiff’s motion, the Caveator asserted that he had “a right”, to cross examine the solicitor who prepared and attested the deceased’s execution of the will, before any determination of the plaintiff’s motion. In the alternative, he contended that he should be granted leave to cross-examine the solicitor before any determination of the motion. He applied for an order (under section 36 of the Evidence Act 1995 NSW), in the nature of a subpoena to compel the solicitor to produce his file and, thereafter, to submit to cross-examination.

In the course of the hearing of the motion, I held that the Caveator had no “right”, at this stage of the litigation (essentially, in the nature of an interlocutory proceeding), to insist upon production of the solicitor’s file or an opportunity to cross-examine the solicitor. In the circumstances of the particular case, I declined to grant him an order in the nature of a subpoena or leave to cross-examine the solicitor. In my opinion, it was not necessary for disposition of the motion to prolong proceedings on it by an adjournment to facilitate production of the solicitor’s file and cross examination. As will emerge, a more orderly procedure is available in case management of these particular proceedings. An exercise of judgement of this type is typically required in case management of probate proceedings in a manner calculated to advance administration of an estate without being distracted by unnecessary interlocutory applications or stumbling into satellite litigation.

The plaintiff’s motion was heard on affidavit evidence adduced on each side of the record, without cross examination of any witness.

On the evidence presently before the Court, it appears that the earlier expressed concerns of the Caveator had a substantial foundation. At the time his last, putative will was executed, the deceased was a vulnerable man. He was elderly and physically ill with the cancers which ultimately claimed his life 18 months later. He was under palliative care, but not entirely immobile. He was profoundly depressed as a consequence of the recent, unexpected death of his long time partner, his life companion and carer. He customarily drank alcohol to excess. The solicitor who drafted the will was not the deceased’s usual solicitor. He wrote the will in his own hand and (with a fellow solicitor) attested its execution, and apparently retained it in his records, unengrossed, until the death of the deceased.

How he came to be retained by or on behalf of the deceased is not the subject of evidence. Why he attended the deceased at his home, rather than in his office (as might be considered normal practice) is not the subject of evidence either. What, if any, sense of urgency attended the preparation and execution of the will is unknown. Why the will was apparently retained by the solicitor, in handwritten form, without (as might ordinarily be expected to be normal practice) engrossing it in typewritten form is the subject of no evidence. Whether there were grounds for an apprehension that, if presented with a typewritten form of the will, the deceased might demonstrate a change of mind is not known.

The plaintiff adduced evidence in support of his motion designed to persuade the Court that the Caveator had insufficient evidence to establish a prima facie case that the last, putative will of the deceased (propounded by the plaintiff) is invalid.

That evidence included: (a) an affidavit by the solicitor who drafted and witnessed the deceased’s last putative will, and another affidavit by the second solicitor who witnessed the will, deposing to their attendance on the deceased at the time the will was executed; (b) medical records from the clinic of the general medical practitioner of the deceased recording, inter alia, that on a home visit to the deceased on 15 January 2020 (shortly before the date of the last, putative will) the deceased “seems quite well”; and (c) correspondence between the parties’ respective solicitors in which the Caveator’s solicitors declined to commit their client to unqualified opposition to admission of the deceased’s last, putative will without the provision of information by the plaintiff, which, on the whole, the plaintiff was reluctant to provide.

On the hearing of the plaintiff’s motion battlelines were ultimately drawn at a point where the plaintiff contended that the Caveator had not raised sufficient doubt about the validity of the deceased’s last, putative will to establish a prima facie case against its validity; and the Caveator contended that he had raised sufficient doubt (about due execution of the will, the deceased’s testamentary capacity and, having regard to “suspicious circumstances” surrounding the preparation and execution of the will, the deceased’s knowledge and approval of its contents) to warrant further investigation in the conduct of a contested probate suit.

The current legislative framework for caveats in NSW is found in Part 2 Division 7 (sections 144-150) of the Probate and Administration Act 1898 NSW (“PAA”) and Division 10 of SCR Pt 78 (rules 66-74).

Part 2 of the PAA is entitled “Probate and Administration”. Division 7 of that Part is headed “Caveats and Orders to Produce”. Sections 144-148 deal explicitly with the topic of caveats. Section 149 has been repealed. Section 150 (which overlaps with section 54 of the Succession Act 2006 NSW) empowers the Court “on the application of any person, whether any proceedings are or are not pending in the Court with respect to any probate or administration”, to make an order for production to the Court of any instrument purporting to be testamentary.

SCR Pt 78 is entitled “Probate and Administration”. Division 10 of that Part is entitled “Caveats”. Subdivision 1 relates to “general caveats”. Subdivision 2 relates to caveats concerning “informal wills”. Subdivision 3 relates to caveats requiring proof in solemn form. Subdivision 4 relates to caveats generally.

Division 7 of Part 2 of the PAA is in the following terms (with emphasis added):

Division 10 of SCR Pt 78 is in the following terms (with emphasis added):

In analysis of the nature and regulation of a “probate” caveat the significance of SCR Pt 78 rule 71(5) should not be overlooked. UCPR Part 13 is entitled “Summary Disposal”. Central provisions of the Part are rule 13.1 (entitled “Summary Judgment”) and rule 13.4 (entitled “Frivolous and Vexatious Proceedings”).

Caution needs to be observed, so as not to read too much into the proper construction of SCR Pt 78 rule 71(4) by the rule’s exclusion of the operation of UCPR Part 13. Nevertheless, SCR Pt 78 rule 71(5) speaks against any attempt to import the summary disposal provisions of UCPR Part 13 directly into SCR Pt 78 rule 71(4). The language of SCR Pt 78 rule 71(4) is to be read without reference to UCPR Part 13. The probate jurisdiction has its own, purpose driven dynamic which SCR Pt 78 rule 71 accommodates.

There has been an equivalent of the current SCR Pt 78 rule 71(5) in the Probate Rules (SCR Pt 78) since the SCR commenced operation in 1972.

The form of a caveat (for the purposes of SCR Pt 78 rules 66, 67 and 68), approved under CPA, is “Approved Form 141 - Caveat”. It is in the following form:

In Estate of Theresa Katalinic [2020] NSWSC 805 and in subsequent cases, including the Estate of Robyn Alice May Linworth [2021] NSWSC 334, Hallen J has recently drawn attention to the importance of framing the determination of a motion for an order that a caveat cease to be in force by reference to the text of SCR Pt 78 rule 71(4), informed by probate law and practice and case management principles, without unnecessary gloss in construction of the rule. The word “doubt”, a pivotal word, must ultimately be construed according to its ordinary meaning unqualified by words of description or limitation - although, in its application to the facts of a particular case, its exposition might be assisted by elaboration. Different judges may prefer different ways of saying much the same thing, expressed as a working assumption in application of the rule, but the rule itself is the touchstone of decision-making.

In Estate of Katalinic [2020] NSWSC 805 at [70], Hallen J held (with emphasis added) that “the appropriate test” for determining whether a caveat should cease to be in force is “whether, on the material before the Court, there is evidence that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, and there are circumstances that warrant investigation as would reasonably require the matter to proceed as a fully contested suit before the Court should consider making a grant of probate in respect of the will (a doubt as to whether the grant of probate should be made)”.

In Estate of Linworth [2021] NSWSC 334 at [53]-[57], his Honour offered, in the following terms, additional insights into the operation of SCR Pt 78 rule 71(4):

His Honour’s observations in Katalinic and Linworth were made, as appears from his judgments, with an appreciation of the necessity for the Court, in making decisions about caveats, to consult what might appear to be best adapted for the just, quick and cheap accommodation of proceedings.

To my mind, the evaluative character of the decision-making process under SCR Pt 78 rule 71(4), and a common sense assessment of “doubt”, derive, not so much from the word “doubt” alone, but from the words “doubt”, “should” and “may”, in combination, in the context of the purpose served by an exercise of probate jurisdiction - essentially, the due administration of a deceased estate without unnecessary delay. This is not, however, a substantial point of difference with the approach adopted by Hallen J.

His Honour’s observations more faithfully reflect SCR Pt 78 than does the classic statement of Powell J in Azzopardi v Smart. I prefer his reasoning to that of Powell J which, in my opinion, represents a departure from the terms of SCR Pt 78 rule 71(4), and its predecessor, an impermissible gloss on the statute.

I also endorse the following observations of Windeyer J in Weinstock v Beck; In the Estate of Weinstock [2007] NSWSC 193; (2007) 1 ASTLR 156 at [13]:

Robb J acted upon a similar view of the law in Wilson v Wilson [2017] NSWSC 1669 at [11]. He proceeded on the basis that SCR Pt 78 rule 71(4)(b) should be applied in accordance with its terms, insofar as the issue before the Court is whether, on the evidence, there is a doubt as to whether a grant of probate should be made.

I add only that, although an order for pleadings will routinely follow a decision to dismiss a motion for an order that a caveat cease to be in force, the making of such a decision provides a convenient occasion for case management of a contested suit, and it may be advantageous for the preparation of pleadings to be deferred pending the filing by one or more of the parties to the suit of a discovery affidavit, or affidavits, of the type discussed in Re Estates Brooker-Pain and Soulos [2019] NSWSC 871, directed to disclosure of facts bearing upon real issues in dispute.

Hallen J’s approach draws support from a study of the legislative history of SCR Pt 78 rule 71(4) and, in particular, the judgment of the Court of Appeal in In the Will of Young (1968) 70 SR (NSW) 386, together with antecedent case law.

The significance of the older case law is recognised in Mason and Handler, Succession Law and Practice, NSW (LexisNexis, Australia, a Loose Leaf Service) at [1681.1] where it is said that the “test” under SCR Pt 78 rule 71(4)(b) “is different in form, although probably not in substance, from that under the old procedure which required the Court to consider whether the lodging of the caveat was not bona fide but vexatious: In the Will of Dixon (1909) 9 SR (NSW) 674; 26 WN (NSW) 130a; In the Will of Young [1968] 3 NSWLR 221; (1968) 70 SR (NSW) 386; 89 (Pt 2) (NSW) 1.”

With that observation, I concur. The problem with the learned authors’ commentary, as with much commentary in this area of the law, is that it is accompanied by an express reference to Azzopardi v Smart for the proposition that “[the] onus of establishing the grounds for an order that a caveat cease to be in force has been described as establishing a prima facie case.”

The spectre of Powell J’s requirement for proof of a prima facie case has yet to be exorcised despite the clear terms of SCR Pt 78 rule 71(4) and the judgment of the Court of Appeal in In the Will of Young.

SCR Pt 78 rule 71(4) in its current form has been in force since 21 January 2013.

Between 1972 (upon commencement of the Supreme Court Act 1970 NSW and the SCR) and January 2013, its predecessor, then SCR Pt 78 rule 69(4), was in the following terms (with editorial adaptation):

The SCR in 1972 introduced criteria (refined in 2013) for the exercise of such discretion as the Court may have in deciding whether or not an application for a grant of probate or administration impeded by the lodgement of a caveat should proceed as a contested suit. Before that time legislation conferred on the Court discretionary powers unconfined by express criteria.

Before 1972, reaching back to the 1890s, the legislative framework for the making of decisions about the operation of a probate caveat was governed by section 147 or section 148(2) of the Wills, Probate and Administration Act 1898 NSW (as the PAA was then known), which were in the following terms (with editorial adaptation):

In In the Will of Young the Court of Appeal (constituted by Wallace P, Walsh JA and Hardie AJA) considered the operation of both section 147 and section 148(2). Wallace P and Walsh JA preferred to analyse the case before them by reference to section 147. Hardie AJA preferred analysis in terms of section 148(2). Given the absence of any criteria expressed in the two provisions governing an exercise of the Court’s discretion, there appears to have been no substantive difference in the reasoning of all three judges. All three were attracted by brief statements of principle reported in In the Will of Farrell (1891) 8 WN (NSW) 32 and in In the Will of Dixon (1909) 9 SR (NSW) 674; 26 WN 130.

Exercising jurisdiction under section 106 of the Probate Act 1890 NSW (which, in substance, became section 147 of the Wills Probate and Administration Act 1898), in In the Will of Farrell, Manning J is reported to have said on an application by the executor of a will to make absolute an order nisi for removal of a caveat and for a grant of probate (with editorial adaptation):

To understand what Manning J had in mind by reference to the affidavits filed in In the Will of R C Maddocks (also dealt with by reference to section 106 of the Probate Act 1890), the brief report of that case is here set out:

In In the Will of Dixon, Street J was dealing with a “Motion for Probate” under section 147 of the Wills, Probate and Administration Act 1898. The report of the judgment explains the context in which it was delivered:

Street J’s judgment is reported in the following terms (with emphasis added):

In In the Will of Young, the essence of the reasoning of Walsh JA appears (at 70 SR (NSW) 392) in the following terms (with editorial adaption and emphasis added):

Hardie AJA (at 70 SR (NSW) 396-397) explained his reasons by reference to the judgments in Maddocks, Farrell and Dixon. He held that, in the case at hand, there was “ample material contained in the affidavit relied upon by the appellants [the caveators] to show that the appellants were genuine and bona fide in their desire and intention to contest the validity of the will, and to negative any suggestion of a vexatious or other improper use or exercise of the right of lodging a caveat, as a consequence of which the parties’ dispute as to the validity of the will should proceed as a contested suit”.

The Court of Appeal’s judgment is broadly consistent with the commentary on section 147 of the Wills, Probate and Administration Act 1898 NSW in the practice book of the day. Hastings and Weir, Probate Law and Practice (Lawbook Co, Sydney, 2nd ed, 1948), at page 36 contained the following observations (here reproduced without footnotes), made also in the first (1939) edition at page 297 and not altered in the 1957 supplement (prepared by D L Mahoney, later President of the Court of Appeal):

The main cases relied upon in support of these observations were the same as those relied upon by the Court of Appeal, although the Court of Appeal (per Walsh JA at 70 SR (NSW) 390) can be read as having expressed doubts about the observation of Street J in In the Will of Goo Tin (1910) 27 WN (NSW) 184 (contrary to Beatson v Perry (1906) 6 SR (NSW) 167) that a caveator was not called on to make out a prima facie case. Walsh JA’s reasoning (extracted above) sidestepped that controversy by focusing attention upon “doubts genuinely entertained” as to the validity of a will, anticipating the terms of SCR Pt 78 rule 69(4) promulgated in 1972.

In substance, the approach of the Court of Appeal in In the Will of Young accords with that of Hallen J in Katalinic and Linworth. It does not sit comfortably with the approach of Powell J in Azzopardi v Smart.

As earlier noticed, in Azzopardi v Smart (1992) 27 NSWLR 232 at 238E, Powell J wrote that:

Those observations set a standard which his Honour generally applied during his tenure as the Court’s Probate Judge to deal summarily with proceedings involving a caveat.

His Honour was regularly driven to distraction by what he perceived to be an inability on the part of the legal profession to understand the difference between “a caveat requiring proof in solemn form” and a “general caveat”. Following Walker J in Beatson v Perry (1906) 6 SR (NSW) 167; 23 WN (NSW) 51, and practice books including the second (1948) edition of Hastings and Weir, he adhered to “the practice of the court that a caveator seeking only proof in solemn form is limited to putting due execution in issue, and to cross-examining the attesting witnesses in respect of that issue.” His insistence that that practice be maintained was, it must be admitted, occasionally qualified by a preparedness to allow a fresh, general caveat to be filed in lieu of the more restrictive form of caveat. In any event he kept a tight rein on caveat proceedings.

His Honour’s comments about an imperative obligation on a caveator to establish “a prima facie case” was sandwiched between his observations about caveat forms and his warnings of cost consequences for a caveator who, on the return of a summons for an order that a caveat cease to be in force, failed “to tender evidence raising at least a prima facie case” of a ground of invalidity of the will under challenge. The cases on which his Honour relied (In the Will of O’Driscoll (1929) 29 SR (NSW) 559; 46 WN (NSW) 176; Beatson v Perry (1906) 6 SR (NSW) 167; 23 WN (NSW) 51; Hay v Simpson (1890) 11 LR (NSW) Eq 109) all dealt primarily with the question of costs, not directly with criteria to be applied upon an application for an order that a caveat cease to be in force.

His Honour did not cite the rule of court then in force (SCR Pt 78 rule 69(4)), the judgment of the Court of Appeal in In the Will of Young (1968) 70 SR (NSW) 286; the cases relied upon by the Court of Appeal in that case (In the Will of Farrell (1891) 8 WN (NSW) 32; In the Will of Dixon (1909) 9 SR (NSW) 674; 26 WN 130); or the reference in Hastings and Weir to that line of authority.

His Honour’s insistence that a caveator be in a position “to tender evidence raising at least a prima facie case” of a ground of invalidity of a will when called upon to do so (often without any practical means of conducting any form of investigation) developed a life of its own, not grounded in legislation or a rule of court, and not without controversy in earlier practice of the Court.

Despite the respect to which Powell J is undoubtedly entitled for his service as a probate judge, Azzopardi v Smart provides no firm foundation for the determination of an application governed by SCR Pt 78 rule 71(4).

The expression “prima facie case” is commonly encountered in the context of a criminal prosecution. Until displaced by the criterium of “a serious question to be tried” (Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148), it was commonly used in connection with an application for an injunction in civil proceedings, and it is still sometimes used as a proxy for “a serious question to be tried”.

Illustrations of the variability of usage of the expression “prima facie case” can conveniently be taken from LexisNexis’ Concise Australian Legal Dictionary (LexisNexis Butterworths, Australia, 5th edition, 2015):

The expression “prima facie case” is not unknown in the context of a final hearing of a contested application for probate. A classic example of that is the judgment of Isaacs J in Bailey v Bailey (1924) 34 CLR 558 at 570-572. Omitting case citations, his Honour stated the following “working propositions” for a determination of a disputed question about testamentary capacity on an application for admission of a will to probate:

In a modern procedural context, where a determination of the validity of a will falls to be made by a judge, sitting alone, without a jury, at the close of evidence adduced by all interested persons (on affidavit evidence, supplemented by cross examination), the judge is required to consider what findings of fact should be made (about whether the will was the last will of a free and capable testator, and subsidiary questions) on the whole of the evidence, drawing such inferences as may be available on the whole of the evidence. In that context, Isaac J’s “working propositions”, implicitly involving shifting burdens of proof, may not reflect the reality of a current day probate suit. That much was recognised by Leeming JA in the Mekhail v Hana [2019] NSWCA 197 at [164]-[168].

For present purposes, it is sufficient to note that, whether used in the context of a criminal prosecution, an application for an interlocutory injunction, the final hearing of a contested probate suit or (I suggest) any other context, the meaning of the expression “prima facie case” depends upon the particular context in which it is used and the purpose for which it is used.

If the expression “prima facie case” is to be used in connection with presentation of a caveator’s case in support of a caveat, it should be taken to be no more than a convenient means of referring to the criterion set forth in SCR Pt 78 rule 71(4)(b), which requires evidence that “there is a doubt as to whether the grant of probate or administration should be made”.

This is not a novel idea, but it can be (as in these proceedings) lost in over ready use of the expression “prima facie case”.

Commentary in Ritchie’s Supreme Court Procedure (NSW) on Pt 78 rule 69 (the immediate predecessor of SCR Pt 78 rule 71 as now in force) contained the following paragraph when, in July 2005, it was replaced by a new service consequent upon commencement of the CPA and the UCPR:

That commentary has been adapted in Ritchie’s Uniform Civil Procedure NSW, so that it now reads as follows:

SCR Pt 78 rule 71(4), and its predecessor, changed the legislative framework for the making of a decision on an application for an order that a caveat cease to be in force. This was done by the introduction of the criteria for which the sub-paragraphs of SCR Pt 78 rule 71(4) now provide.

A feature of those criteria, or at least that for which SCR Pt 78 rule 71(4)(b) provides, is that the Court is left with a broad discretion which (in the language of Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505) is “unconfined except in so far as the subject matter and the scope and purpose of [the governing legislation] may enable the Court to pronounce given reasons to be definitely extraneous to any objects that the legislature [or rule making authority] could have had in view”.

SCR Pt 78 rule 71(4)(b) offers no exposition of factors that might be taken into account by reference to it. Nor is it necessary or desirable that anything like an exhaustive list of factors be engrafted onto SCR Pt 78 rule 71(4)(b) as judicial gloss. The Court needs to retain the flexibility necessary to deal with a wide range of diverse cases.

Nevertheless, the following questions might aid an interrogation of the facts and circumstances of a case in the application of SCR Pt 78 rule 71(4):

The Court needs to be mindful not to allow the caveat procedure to be abused by parties who seek to deploy it, not to canvass the necessity for a contested suit for a grant of probate or administration, but in an endeavour to force an opponent to show its hand before the anticipated commencement of a contested suit.

In my opinion, the evidence before the Court is sufficient to show that there is a doubt as to whether the last, putative will of the deceased should be admitted to probate, a doubt sufficient to warrant an investigation in a contested probate suit. The Caveator’s case is not frivolous or lacking in bona fides. The Caveator acted reasonably in communicating his concerns to the plaintiff, and in inviting the plaintiff to dispel those concerns without a contest on the caveat, an invitation that the plaintiff (relying on Azzopardi v Smart) declined to accept.

The affidavits sworn by the attesting witnesses to the will, obtained and read by the plaintiff, provide no insight into the circumstances surrounding preparation of the will despite the fact that, on any view of the evidence presently available, the deceased was apparently a vulnerable man and the circumstances in which the will was prepared and executed invite explanation. The plaintiff’s affidavit evidence was not responsive to the concerns expressed by the Caveator as doubts sufficient to warrant a contested suit.

The clinical notes adduced in evidence by the plaintiff may, upon further inquiry, support a submission that the deceased was in control of his faculties when he executed the will. However, insofar as they speak of the deceased being “well”, they need to be read in the context of his illness and the fact that he was under a form of palliative care. They may be read as conveying the idea, simply, that he was “as well as can be for a terminally ill man”. They do not include a formal “capacity assessment” of the deceased of the type sought by the Caveator in correspondence between the solicitors. The absence of such an assessment is unexplained.

The plaintiff’s forensic decision to “put the Caveator to proof” of a ground of challenge to the validity of the will (to the level of a prima facie case) without providing more than formal information about the circumstances in which the will was executed lends itself to a finding that the Caveator should be allowed an opportunity to investigate the circumstances in which the will was prepared and executed in the conduct of a contested probate suit. He will do so at his own risk as to costs, without any assurance that costs will be paid out of the deceased’s estate, but he has identified grounds for the conduct of an investigation.

These caveat proceedings are not, as counsel for the plaintiff submits, a de facto application by the Caveator for “preliminary discovery” (akin to that for which UCPR Part 5 provides) “to obtain sufficient information to decide whether or not” to challenge the validity of the will. The evidence of the deceased’s vulnerability, and unusual circumstances surrounding preparation, execution and retention of the will in handwritten form, provide an objective foundation for a finding that further investigation of the validity of the will is warranted before a decision can reasonably be made that the will be admitted to probate.

The Caveator’s challenge to the due execution of the will (based upon an uninitialled amendment to the will) is not, of itself, sufficient to raise a doubt within the meaning of SCR Pt 78 rule 71(4) in light of the evidence of the solicitor who prepared and witnessed the will that the alteration was made before the will was executed. However, the vulnerability of the deceased, and the unusual circumstances surrounding the provenance of the will, are, in my opinion, sufficient to establish a doubt warranting further investigation.

The deceased’s testamentary capacity, and his knowledge and approval of the last, putative will, are sufficiently in play to direct that the plaintiff’s application for probate proceed by way of a statement of claim seeking a grant in solemn form.

The plaintiff’s refusal to respond constructively to the Caveator’s request for information; his insistence that the Caveator had first to establish a prima facie case of invalidity of the deceased’s last, putative will; and his provision of evidence that deliberately stopped short of a full explanation of the circumstances in which the will was prepared and executed, were counter-productive. By his own conduct, the plaintiff created fields of inquiry (informed by unresolved, reasonable concerns) that warrant investigation.

Subject to allowing the parties an opportunity to make submissions about the form of the Court’s orders, and costs, I propose to make orders to the following effect:

I invite the parties to give consideration to whether an orderly administration of the deceased’s estate would best be served by the appointment of a special administrator pending the determination of a contested probate suit.

I also record my hesitancy in allowing the plaintiff’s costs of his motion to be paid out of the estate of the deceased in circumstances in which, in my opinion, he acted unreasonably in refusing to engage with reasonable inquiries made by the defendant. Subject to any submissions that might be made to the contrary, I have provisionally come to the view that the defendant’s conduct, although unreasonable, was the product of the profession’s uncritical acceptance of Azzopardi v Smart over many years.

SCR Pt 78 rule 71(4) should, in the future, be read and applied in accordance with its terms.

That does not mean that a caveator can be unmindful of the forensic onus he or she has to ensure that the Court has before it sufficient evidence to make an informed decision by reference to SCR Pt 78 rule 71(4). Nor does it mean that a caveator who acts in disregard of that onus will not be at risk of an adverse costs order. What it means is simply that, however convenient it may be to discuss the operation of the rule in other terms, the rule itself provides the criteria for a decision by the Court.