Williment v Waters

1. [1]

   By notice of motion filed on 13 February 2026, Laura Waters, the first respondent, seeks an order against Lavinia Williment, the appellant, for security for the costs of the appeal, in an amount of $100,000.

2. [2]

   Ms Williment appeals against the orders made by Elkaim AJ (the primary judge) on 28 November 2025 revoking the grant of probate in common form made on 30 April 2021 to Andrew Frank, as the executor of the will of the late Percy Lloyd Waters (the deceased) dated 5 August 2019 (the 2019 will) and granting probate in solemn form of the will of the deceased dated 3 June 2009 (the 2009 will) to Ms Waters.

3. [3]

   The deceased was born in London in December 1918: J[4]. He had two daughters, Ms Waters, born in 1956, and Victoria Goss, born in 1957. His wife died in March 2003. In August 2006, when the deceased was 87 years old, he was struck by a motor vehicle when he was a pedestrian and suffered serious injuries. From that time on, he required a carer. From about March 2008, Ms Williment performed that role: J[15]. The deceased died on 4 September 2020 at the age of 101: J[19].

4. [4]

   The deceased made a number of wills. In the wills made on or prior to 3 June 2009, his daughters shared the whole of his residuary estate in equal shares. In subsequent wills, Ms Williment was named as a beneficiary of a percentage of the residuary estate: 5% in a will made in 2011; 10% in a will made in 2016; 15% in a will made in 2017 and 21% in the 2019 will: J[22]-[23]. In the 2019 will, Ms Waters and her sister were each left 20% of the residue.

5. [5]

   In the Court below, Ms Waters challenged the grant of probate in common form of the 2019 will that had been granted to Mr Frank, the first defendant in the Court below and the second respondent on the appeal. She submitted that the 2019 will and all preceding wills after the 2009 will were invalid by reason of the deceased’s lack of testamentary capacity, suspicious circumstances and the undue influence of Ms Williment. The primary judge found that each of these three challenges to the 2019 will and the preceding wills after the 2009 will was made out and, accordingly, granted probate in solemn form to Ms Waters in respect of the 2009 will. In addition, the primary judge found that both probate undue influence and equitable undue influence were made out. This finding was made in response to the submissions made to the primary judge that this Court’s decision in Schwanke v Alexakis; Camilleri v Alexakis (2024) 114 NSWLR 459; [2024] NSWCA 118 was incorrectly decided (which is raised in the notice of contention filed on behalf of Ms Waters).

6. [6]

   Kevin Emanuel, the third respondent on the appeal, became the third defendant and the first cross-claimant in the Court below, as he replaced Mr Frank, who, as a result of his indisposition, was unwilling to propound the 2019 will in the application for a grant of probate in solemn form.

7. [7]

   Ms Williment’s first 15 grounds of appeal comprehensively challenge the primary judge’s fact-finding, including with respect to testamentary capacity, suspicious circumstances and undue influence. Ground 16 is in a different category and alleges the following:

The evidence adduced on the application

1. [8]

   Mr Brown, who appeared on behalf of Ms Waters with Mr McIntyre in this Court and in the Court below, relied on two affidavits of Christine Vrahas, Ms Water’s solicitor, sworn 12 February 2026 and 11 March 2026. These affidavits, together with the court record establish the following.

2. [9]

   On 1 December 2025, Ms Waters’ solicitors, who had been made aware of Ms Williment’s intention to appeal, wrote to Ms Williment’s solicitors, asking them to provide a statement of Ms Williment’s assets and liabilities. No response was received to that request. Nor did Ms Williment’s solicitors respond to a request made on 3 February 2026 to confirm whether her legal advisers were acting on a no-win, no-fee basis.

3. [10]

   In October 2025 when Ms Williment was giving evidence in the Court below, she confirmed that she was in receipt of the age pension. Ms Williment was asked in cross-examination whether she had “financial savings at the time [she was looking after the deceased]”, to which she responded:

4. [11]

   Evidence tendered in the Court below indicated that cheques and funds transferred from an account in the deceased’s name were used to pay Ms Williment’s rent and credit card bills. As far as the evidence before me revealed, the first of these payments was made on 1 December 2010 and the last was made on 7 July 2020, shortly before the deceased’s death.

5. [12]

   On 9 December 2021 (after the deceased’s death), Mr Frank recorded in a file note (admitted into evidence in the Court below) that he had seen Ms Williment at the Northmead Anglican Church. She had asked him for a letter for her landlord, which stated how much she was getting in the deceased’s will. He noted that he refused to provide one but suggested that she send a copy of the 2019 will to her landlord. Mr Frank noted:

6. [13]

   The evidence established that Ms Williment had lived in four different rental premises in the Penrith and Glenbrook areas between 21 December 2022 (when she filed a notice of appearance in the Court below) and 16 January 2026 (when she filed the notice of appeal).

7. [14]

   On 24 June 2022, Ms Waters filed a statement of claim seeking a grant of probate in solemn form of the 2009 will and a revocation of the probate granted in common form of the 2019 will. Mr Frank, the executor of the 2019 will, was named as the sole defendant. On 15 August 2022, Mr Frank filed a defence and cross-claim of which Ms Waters was the cross-defendant. In the cross-claim, Mr Frank sought an order that the 2019 will be admitted to probate in solemn form. In the alternative (in descending order), he sought similar orders in respect of the 2017, 2016 and 2011 wills of the deceased. Mr Frank served a notice of proceedings on all interested persons, including Ms Williment (as she was a beneficiary under all the wills which he propounded), in accordance with the Supreme Court Rules 1970 (NSW) (SCR), Pt 78, r 57.

8. [15]

   At the next directions hearing, on 14 November 2022, Mr Dupree of counsel appeared for Ms Williment, instructed by Mr Mitchell, solicitor. Mr Stevens, solicitor, appeared for Mr Frank and Mr Brown appeared for Ms Waters. Hallen J asked Mr Dupree why Ms Williment had filed a notice of appearance in circumstances where Mr Frank was propounding all of the wills under which she was a beneficiary. The following exchange occurred:

9. [16]

   The orders made by Hallen J at the conclusion of the directions hearing on 14 November 2022 included the following directions and notations:

10. [17]

    On 21 November 2022, Ms Waters filed an amended statement of claim in which she added Ms Williment as a second defendant in accordance with Hallen J’s direction. This amended pleading contained allegations of suspicious circumstances (involving Ms Williment), special disability (as between the deceased and Ms Williment) and undue influence (at the hands of Ms Williment) in respect of the 2019, 2017, 2016 and 2011 wills.

11. [18]

    Approximately two years later, at a directions hearing on 1 November 2024, Mr Brown appeared for Ms Waters, Mr Stevens appeared for Mr Frank and Mr Mitchell appeared for Ms Williment. By that time, Mr Frank was no longer capable of propounding the 2019 will. The question arose whether a new defendant ought be added or whether Ms Williment could take on Mr Frank’s role of propounding the 2019 will.

12. [19]

    Mr Brown submitted that Ms Williment ought perform this role since, although she had not filed a cross-claim propounding the same documents, her defence alleged that the grant of probate in common form in respect of the 2019 will ought remain in place and not be revoked. The following exchange occurred between Lindsay J and Mr Mitchell:

13. [20]

    At this directions hearing, Mr Stevens confirmed that the estate comprised $2.7 million of which $2 million was in a controlled monies account and $700,000 was in a trust account. On Mr Brown’s application, the matter was stood over for seven days.

14. [21]

    On 8 November 2024, Lindsay J ordered that Mr Frank be excused from further conduct of the proceedings and that Mr Emanuel be joined as third defendant and be given conduct of the proceedings relating to the defence and cross claim on the basis that his costs would be paid from the estate on an indemnity basis. Administration of the estate was also granted to Mr Emanuel, limited to the defence and cross-claim and representing the interests of the deceased in the proceedings.

15. [22]

    On the first day of the hearing, 20 October 2025, Mr Brown opened the case for Ms Waters, following which he sought leave to file a second further amended statement of claim. The only material amendment was that undue influence was expressly pleaded as a separate allegation, although it had long been part of Ms Waters’ case in support of her application for revocation of the grant of probate in common form for the 2019 will. Mr Stevens objected to the amendment on behalf of Mr Emanuel. In answer to the primary judge’s question as to Ms Williment’s position, Mr Ellison SC, who appeared for Ms Williment, responded:

16. [23]

    In closing submissions to the primary judge, Mr Ellison confined his submissions to the question of undue influence.

17. [24]

    Ms Waters relied on the disparity between the deliberately circumscribed position which Ms Williment adopted in the Court below and the wide ambit of the appeal as a special circumstance for the purpose of ordering security for costs (as addressed below).

18. [25]

    The unchallenged evidence adduced on behalf of Ms Waters on the quantum of security was given by Ms Vrahas in her affidavit of 12 February 2026:

19. [26]

    Mr Brown accepted that security could be ordered in tranches and suggested, by way of example, that 50% of the security ordered could be ordered within 28 days and a further 50% within 7 days of the appeal being set down for hearing.

20. [27]

    Ms Williment did not give evidence as to her financial circumstances. The only evidence relied on in opposition to the application for security for costs was given by her solicitor, Mr Mitchell, in his affidavit of 2 March 2026. He deposed that Ms Williment’s legal representatives are acting on a “no-win, no-fee” basis. He also said that Ms Williment has the benefit of two costs orders made on 22 May 2023 and 19 June 2023, neither of which has been assessed or paid.

21. [28]

    I rejected the following sentence in Mr Mitchell’s affidavit on the basis that it was a conclusion, the foundation of which was unstated:

22. [29]

    However, I gave leave to Mr Ellison to elicit oral evidence from Mr Mitchell in proper form. Mr Mitchell gave oral evidence that he had last spoken with Ms Williment about her financial circumstances when they filed the appeal (the notice of intention to appeal was filed on 24 December 2025 and the notice of appeal was filed on 16 January 2026). He agreed that he had not made enquiries of Ms Williment “recently” as to her financial status in England. When asked whether he was aware that Ms Williment had a wealthy brother in England, Mr Mitchell responded, “I think he’s passed away.” Mr Mitchell said that he had not seen Ms Williment’s brother’s will. Mr Mitchell agreed that it was likely that Ms Williment’s brother had died since the hearing in the Court below.

Consideration

1. [30]

   It was common ground that, in order to obtain an order for security for costs of an appeal, it was necessary for Ms Waters to establish special circumstances in addition to the usual matters which are regarded as warranting such an order in first instance proceedings. It was also common ground that Ms Williment was present in Court for the hearing of the application for security for costs and did not give evidence although she was available to do so.

2. [31]

   Rule 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides:

3. [32]

   Rule 42.21 of the UCPR relevantly provides:

4. [33]

   Although Ms Williment is not ordinarily resident outside Australia, she lives in rented accommodation, the location of which changes relatively frequently (which may be explained by the vicissitudes of the rental market or non-payment of rent as a result of her impecuniosity) and has family ties to the UK. Further, there is some evidence that Ms Williment’s brother was “wealthy”, had died since the hearing and that she expected to inherit under his will. These matters are relevant to two factors: whether Ms Williment will remain in Australia and whether she has established that an order for security will stultify the proceedings.

5. [34]

   If Ms Williment relocates to the UK, and her appeal is unsuccessful, Ms Waters will be put to the cost, delay and risk of enforcing a costs order in a foreign jurisdiction: see PS Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36; (1991) 65 ALJR 642 at [7] (McHugh J). This factor is significant in the present case where it would appear that Ms Williment has no assets in Australia and, in effect, lives from hand to mouth here. I do not regard the two outstanding costs orders as bearing on her financial position. She has taken no steps to quantify or assess these orders, which is understandable, given that she has appealed the principal orders made by the primary judge.

6. [35]

   Although I do not consider that Ms Williment’s change of address is particularly probative, her lack of fixed abode would tend to magnify the cost, delay and risk of enforcement of any adverse costs order, particularly one which needs to be enforced in the UK, being the only jurisdiction where there is a possibility that she has assets.

7. [36]

   Ms Williment bears the onus of establishing that an order for security would stultify her ability to prosecute the appeal. Ms Williment, though available to give evidence, has chosen not to give any evidence as to her financial circumstances. Such evidence as is available suggests that she may have inherited, or be about to inherit, funds or assets in the UK from her brother. In these circumstances, it is appropriate to draw a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference that her evidence would not have assisted her resistance to the application for security. The principle in Blatch v Archer (1774) 1 Cowper 63 at 65; 98 ER 969 at 970 – that all evidence is to be weighed according to the proof which is within the power of one side to have produced and the power of the other to have contradicted – is also relevant. It can be inferred that Ms Williment knows when her brother died and whether she is a beneficiary under his will and has chosen neither to reveal such matters to the Court nor to give evidence (which would have subjected her to cross-examination). These are not matters which are reasonably ascertainable by Ms Waters, except to the limited extent possible in the course of cross-examining Mr Mitchell as to his knowledge of Ms Williment’s financial position.

8. [37]

   In Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 (Preston), Basten JA summarised the principles relevant to the concept of “special circumstances” for the purposes of an application for security for costs of an appeal at [18], as follows:

9. [38]

   Mr Brown relied on three matters which he submitted comprised special circumstances: first, Ms Williment’s conduct of the proceedings in the Court below; second, the ambit of the appeal; and, third, the lack of merit of the appeal.

10. [39]

    Mr Brown relied on the narrative set out above as to the forensic course taken by Ms Williment in the Court below. He argued that, by filing a notice of appearance in response to the notice of proceedings Ms Williment chose to become a party to the proceedings, in circumstances where her interest (in propounding the 2019 will and, in the alternative, all the wills prior to that date but after the 2009 will) relevantly corresponded with that of Mr Frank, and, after he was excused, of Mr Emanuel. Mr Brown submitted that Ms Williment had brought about a situation where she was a defendant to the proceedings and yet had not filed a cross-claim (since she was apparently content for Mr Frank and, subsequently, Mr Emanuel, to do the work of propounding other wills).

11. [40]

    Mr Brown submitted that it was significant that Mr Emanuel, who acted as the contradictor to Ms Waters’ case in the Court below, has apparently elected not to appeal against the orders made by the primary judge. Further, he submitted that it was also significant that, in the appeal, Ms Williment was seeking an order that Ms Waters’ second further amended statement of claim be dismissed and that probate in solemn form be granted of the 2019 will. He submitted that Ms Williment’s position on appeal was much broader than the limited role she elected to play in the Court below. He relied on the circumstances that Ms Williment did not challenge any aspect of Ms Waters’ claim in the Court below other than the allegations of undue influence and did not propound the 2019 will, or any other will, by cross claim or otherwise.

12. [41]

    Ms Williment’s forensic choices in the Court below, which resulted in her being joined as a defendant to the proceedings, gave her an automatic right of appeal (since she was a party). Had she chosen not to have been joined as a party, it would have been necessary for her to apply for leave to appeal as an affected person or witness: s 101 of the Supreme Court Act 1970 (NSW); Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52, referring to Re Markham; Markham v Markham (1880) 16 Ch D 1 (where a potential beneficiary under a will who was not party to administration proceedings was granted by the Court of Appeal leave to appeal despite having not been a party to the cause); and Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [62] (Basten JA). However, the ambit of Ms Williment’s role in the Court below was very much more limited than the ambit of her appeal to this Court. She is, in effect, seeking to exercise a right of appeal which could have been exercised by Mr Emanuel, who has chosen not to exercise it.

13. [42]

    I regard the disparity been Ms Williment’s role in the Court below and the ambit of the appeal to this Court, as well as the circumstance that Mr Emanuel has chosen not to appeal against the primary judge’s orders, as amounting to special circumstances for the purposes of UCPR, r 51.50(1).

14. [43]

    It is also significant that Ms Williment’s notice of appeal contains ground 16 (extracted above), in respect of which she can have no conceivable financial or forensic interest. She is not a beneficiary under the 2009 will or any will executed prior to the 2009 will. She is not entitled to take on an intestacy, being unrelated to the deceased. Accordingly, she has no standing to challenge the 2009 will: Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [49] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ). Her position is to be contrasted with that of Ms Waters and Ms Goss, who have an interest in all wills, as they would be entitled on an intestacy.

15. [44]

    Further, ground 16 is at odds with the forensic position Ms Williment took in the Court below, as evidenced by the Joint Statement of Issues, which read:

16. [45]

    Had I considered this ground to be a matter for which Ms Williment was responsible, I might have considered that it manifested a lack of bona fides on her part. However, it may be that the addition of the ground ought fairly to be attributed to her legal advisers. Indeed, Mr Ellison agreed that it led nowhere but that he put it in because the medical evidence of cognitive impairment pre-dated the 2009 will. Be that as it may, it is an aspect of the appeal which is entirely extraneous to Ms Williment’s legitimate forensic interests and adds, to some extent, to the special circumstances.

17. [46]

    In Mr D v Ms P [2020] NSWCA 174, Bell P addressed the relevance of prospects of success on an application for security for costs of an appeal at [45] as follows:

18. [47]

    Mr Ellison submitted that the appeal could not be regarded as having poor prospects in circumstances where:

    1. (1)

       in four separate wills made over the course of about eight years (in 2011, 2016, 2017 and 2019), the deceased progressively decreased the percentage benefit to his children and correspondingly increased the benefit to Ms Williment;

    2. (2)

       each of those four wills was prepared by the same solicitor who had known the deceased; and

    3. (3)

       the deceased had given written and oral instructions and annotated draft and previous wills.

19. [48]

    The primary judge had the undoubted advantage of seeing and hearing the witnesses, including Ms Williment: see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]. His Honour found that the deceased lacked testamentary capacity for each of the four wills post-dating the 2009 will and that there were suspicious circumstances and relevant undue influence on the part of Ms Williment, which rendered each of these wills invalid. In order to succeed on the appeal, Ms Williment must overturn the primary judge’s findings as to testamentary capacity, suspicious circumstances and undue influence. In effect, Ms Williment challenges every material finding made by the primary judge and his Honour’s assessment of all of the witnesses, lay and expert. I do not consider that her prospects of appeal can be regarded as other than weak.

20. [49]

    Nor do I accept Mr Ellison’s submission that the primary judge’s preparedness to grant a stay of the orders indicated that his Honour harboured a doubt as to the correctness of the orders or held any view as to the prospects of appeal. Trial judges routinely grant stays of orders in order to ensure that an appeal is not rendered nugatory.

21. [50]

    The lack of prospects of success of an appeal in circumstances where the appellant is apparently impecunious, at least in the jurisdiction where the appeal is brought, is also significant and may, in some cases, amount to special circumstances: Preston at [18]. In Dye v Commonwealth Securities Limited [2012] FCA 992 (applied in Theocharous v Theocharous [2025] NSWCA 243 at [11] and [14] (Ball JA)), Emmett J said at [28]:

22. [51]

    In summary, Ms Williment has failed to discharge her onus of establishing that an order for security will stultify the appeal. The matters referred to above, when taken together, establish special circumstances. I am persuaded that security for costs ought be ordered.

23. [52]

    Mr Ellison did not take issue with the quantum of security sought. Mr Brown suggested that it could be ordered in tranches. I do not favour that approach. If the true position is that Ms Williment cannot provide security or is unwilling to hazard, for the purposes of her appeal, funds or an expectation of funds to which she may have access in the UK, it is in the interests of the parties and of the administration of justice that this be known sooner rather than later.

24. [53]

    I have also made provision in order (4) for the appeal to be dismissed if security for costs is not provided within a total of 56 days (28 days after the last day on which Ms Williment is required to provide security for costs). This order is designed to obviate the need for Ms Waters to file a notice of motion for an order dismissing the proceedings if Ms Williment has not provided security for costs as ordered.

Orders

1. [54]

   For the reasons given above, I make the following orders:

   1. (1)

      Order the appellant to provide security for the first respondent’s costs of the appeal in the sum of $100,000.

   2. (2)

      Order that the security in order (1) be provided within 28 days either by payment of the amount into Court or by the provision of a bank guarantee that is acceptable to the first respondent.

   3. (3)

      Order that, if the appellant fails to comply with orders (1) and (2), the proceedings against the first respondent be stayed until such time as the security is provided.

   4. (4)

      If after a further 28 days, the appellant fails to provide the security referred to in orders (1) and (2), dismiss the appeal.

   5. (5)

      Order the appellant to pay the first respondent’s costs of the notice of motion filed on 13 February 2026.