Re Estates Brooker-Pain and Soulos

Before the Court are two separate sets of proceedings which invoke the probate jurisdiction of the Court and which, in common, invite consideration of principles informing practice of the Court (in the conduct of the Probate List in the Equity Division) relating to the issue of “subpoenas for production” of documents, and the service of “notices to produce to court”, at an interlocutory stage of the proceedings well in advance of appointment of a date for final hearing.

In neither case is there need of an order, a subpoena for production or a notice to produce directed towards the production of a will or other testamentary instrument. In each case, the parties have identified the deceased’s last will and earlier wills which may be in competition with it for admission to probate.

Nevertheless, a review of the law and practice relating to the use of procedures for the compulsory production of documents in aid of probate proceedings (in particular, an application for admission of a will to probate or a comparable procedure) requires consideration of the means by which a person who is, or may be, interested in a deceased estate can investigate the existence of a will and the circumstances of its preparation and execution.

What both cases before the Court highlight is the central importance of

Disputation about the availability or scope of procedures for compulsory production of documents in probate proceedings is often a function of a lack of clarity about the issues to be determined in the principal proceedings. If there is a consensus about the real issues in dispute, the categories of documents required to be produced to the Court, in aid of a just determination of the proceedings, becomes substantially less contentious.

For this reason, it is important to appreciate:

If and when the parameters of a case are set, questions about the availability of procedures for the compulsory disclosure of documents (or other forms of “discovery”, such as interrogatories) and the scope of “orders” for the production of documents (whatever may be the form of such orders) are governed by considerations of what is reasonably required for a just determination of the principal proceedings.

An allowance can be made for a need to conduct an investigation into whether a testamentary instrument is, or is not, the last will of a free and capable testator; but that too is governed by considerations of reasonableness: (a) in identification of a case for inquiry, including identification of a legitimate forensic purpose in pursuit of an investigation; and (b) in avoidance of oppression.

The merits of each case must ultimately be considered on the facts of the particular case, in the context of case management principles, having regard to the purpose for which probate jurisdiction exists.

A reference to “case management principles” is a reference to the “Guiding Principles” set out in Division 1 (sections 56-60) of Part 6 of the Civil Procedure Act 2005 NSW (“CPA”). The Court’s “overriding purpose” is to facilitate the just, quick and cheap resolution of real questions in dispute: CPA section 56. Proceedings are to be managed having regard to objects which include the just determination of the proceedings, the efficient disposal of the business of the Court in a timely and cost-effective manner: CPA section 57. The Court must act in accordance with “the dictates of justice”, elaborated by reference, inter alia, to the degree of difficulty or complexity to which the issues in the proceedings give rise and the degree of injustice that would be suffered by the respective parties to proceedings as a consequence of any order or direction made by the Court: CPA section 58. Delay is to be minimised: CPA section 59. Costs should be kept proportionate to the importance and complexity of the subject matter in dispute: CPA section 60.

The task of the Court is to carry out a deceased person’s duly expressed testamentary intentions, and to see that beneficiaries get what is due to them: In the Goods of William Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192.

The first set of proceedings (numbered 2018/00310910) relates to the estate of Agnes Kelly Brooker-Pain who died on 26 September 2018 aged 98 years, leaving an estate with an estimated value of approximately $1.5 million and a last will dated 12 April 2014, probate of which is sought by the plaintiff.

The defendant having filed a caveat, the plaintiff filed a statement of claim (seeking a grant of probate of the will dated 12 April 2014 in solemn form) naming the defendant as her contradictor.

No defence or cross-claim has yet been filed.

The deceased is believed to have executed the following testamentary instruments, here identified in chronological order: a will dated 22 May 1978; a will dated 9 February 2009; a will dated 20 October 2009; a letter (said to be an informal will) dated 22 October 2009; a codicil dated 13 July 2012; and the contested will dated 12 April 2014.

The plaintiff is a granddaughter of the deceased and a beneficiary under the contested will, and earlier wills of the deceased. The defendant is a daughter of the deceased who, although a beneficiary under earlier wills, was excluded from the contested will.

By a notice of motion filed on 9 January 2019, the defendant applies to the Court for: (a) leave to issue subpoenas for production directed to specified hospitals and health care professionals relating to medical treatment of the deceased; and (b) an order, under CPA section 68, for the production of documents by the solicitors for the plaintiff (formerly solicitors for the deceased) relating to the preparation and execution of the contested will.

She also applies, orally, for an order, pursuant to CPA section 61, that the plaintiff provide to the defendant, within a specified time, the names of doctors or medical professionals who treated the deceased (other than those identified by the defendant as known to her) in the period 2011-2018.

CPA sections 61 and 68 are in the following terms:

The defendant suspects that the deceased lacked testamentary capacity at the time she executed the contested (2014) will, and that she may have executed it under undue influence.

The second set of proceedings (numbered 2018/00050908) relates to the estate of Rene Soulos who died on 27 January 2018 aged 98 years, leaving an estate with an estimated value of approximately $35 million and a last will dated 13 March 2017, probate of which is sought by the plaintiffs.

The defendant having filed a caveat, the plaintiffs at my invitation filed a statement of claim (seeking a grant of probate of the will dated 13 March 2017 in solemn form) naming the defendant as their contradictor.

The deceased was survived by four children. The plaintiffs are, respectively, her accountant, her solicitor, and one of her sons. The defendant is also a son.

The defendant has filed a defence challenging the validity of the will dated 13 March 2017 on the grounds that the deceased lacked testamentary capacity and that she signed the will without knowledge and approval of its contents.

He has also filed a cross claim in which he makes alternative claims for relief; namely: (a) a grant of letters of administration of the estate of the deceased upon the basis that she died intestate; (b) alternatively, orders for admission to probate of a will of the deceased dated 5 November 2015; and (c) if the deceased is not found to have died intestate, orders for family provision relief out of the estate of the deceased under Chapter 3 of the Succession Act 2006 NSW.

The deceased is believed to have executed 16 wills respectively dated (in chronological order) 17 January 1995, 22 January 2003, 3 February 2003, 4 June 2008, 11 June 2010, 12 May 2011, 18 May 2011, 13 December 2012, 22 March 2013, 26 March 2013, 30 January 2015, 11 March 2015, 20 October 2015, 5 November 2015, 8 February 2017 and 13 March 2017. I have not located the will dated 20 October 2015.

In his cross claim, the defendant alleges that, between 17 January 1995 and 13 March 2017 or thereabouts, the deceased purported to make these 16 wills, each of which is alleged to have been made without her knowledge and approval. This allegation grounds the defendant’s claim that the deceased died intestate. His alternative claim (for the will dated 5 November 2015 to be admitted to probate) is based upon a contention (additional to his allegation of a want of knowledge and approval) that, when she executed two later wills (respectively dated 8 February 2017 and 13 March 2017) the deceased lacked testamentary capacity.

By a notice of motion filed on 14 November 2018, the plaintiffs seek to set aside: (a) three notices to produce to court dated 29 October 2018, one addressed to each plaintiff; (b) a subpoena addressed to Concord Repatriation General Hospital, filed 1 November 2018; and (c) a subpoena addressed to the plaintiffs’ solicitors, filed on 5 November 2018.

Each of these documents seeks the production of documents for the period between 7 December 2003 and 27 January 2004. The subpoena addressed to Concord Hospital seeks medical records relating to the deceased. The subpoena addressed to the solicitors seeks production of their file, or files, relating to the preparation and execution of wills of the deceased. The notices to produce are expressed in terms similar to the subpoena addressed to the solicitors.

The plaintiffs contend that, in their scope, these demands for compulsory disclosure of documents are unduly wide and oppressive, and not directed to questions genuinely in dispute in the proceedings.

Although the plaintiffs’ notice of motion seeks an order that the subpoena addressed to Concord Hospital be set aside, the Hospital produced documents to the Court in answer to the subpoena on 13 November 2018, prior to the hearing of the motion. In that light, the motion is, in effect, an application for refusal, or limitation, of the defendant’s access to the Hospital records.

No documents have been produced to the Court in answer to the other process sought to be set aside.

In concept, proceedings on an application for a grant of probate or administration may involve invocation of procedures commonly used in ordinary civil proceedings for the “disclosure“ of documents material to the application – procedures such as “discovery of documents” (Uniform Civil Procedure Rules 2005 NSW Part 21); administration of interrogatories (UCPR Part 22); subpoenas for production (UCPR Part 33); notices to produce (UCPR Parts 21 and 34); and orders for the production of documents (CPA section 68, if not also CPA section 61). Whether “preliminary discovery” procedures (governed by UCPR Part 5) are available is a moot point. They are not commonly referred to in the context of probate proceedings.

In practice, the procedures most commonly deployed are subpoenas for production; notices to produce to court; and applications for a direction that affidavits be filed and served on particular issues, such as the circumstances in which a will was prepared or executed. Each of these procedures is amenable to case management principles.

In former times, the Court was more vigilant than it now is about the deployment of subpoenas for the production of documents at a time when no trial, hearing or application is pending. In Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98, Powell J held that where a party (at a time when no trial, hearing or application was pending) caused subpoenas to be addressed to strangers to litigation calling upon them to produce documents as a means of obtaining further and better discovery, the Court could set aside the subpoenas as an abuse of the processes of the court.

The strictness of that approach was displaced no later than enactment of the Civil Procedure Act and the Uniform Civil Procedure Rules in 2005: JP Hamilton, “Nuts and Bolts for Judicial Officers” in Lindsay (ed), The Handbook (Law Book Co., 2005) at [9.2200]; Azzi v Volvo [2006] NSWSC 283 at [10]. This is consistent with the development of case management theory which informs practice governed by the CPA and the UCPR. Questions about “discovery” are now more routinely dealt with at directions hearings than they were in an era in which “trial preparation“ was generally undertaken with less direct supervision by the Court than is now common.

General discovery (based upon an order for discovery or service of a notice for discovery after the close of pleadings) was “abolished” at about the same time as parties were allowed greater latitude in the service of subpoenas for production and notices to produce. Subpoena and discovery processes are generally now directed to production of identified classes of documents rather than all documents “relevant” to issues defined by pleadings: Azzi v Volvo [2006] NSWSC 283 at [10]-[11]; Cf, K. F. O’Leary and A. E. Hogan, Principles of Practice ad Procedure (Butterworths, Sydney, 1st ed, 1976), Chapter 20 and Chapter 23 section 3. One consequence of this is that particular vigilance may be required in prevention of abuses of process attending indiscriminant deployment of subpoenas and notices to produce.

Under current rules of court, a subpoena for production (UCPR Part 33) and a notice to produce to court (UCPR, Part 34) have substantially the same effect, material differences being that:

By definition, a subpoena to produce is an order in writing requiring the addressee to produce a document or thing to the Court: UCPR rule 33.1. Subject to formalities as to service having been complied with, an addressee must comply with the subpoena by production to the Court of a document or thing specified in the subpoena: UCPR rule 33.6. A failure to comply with a subpoena without lawful excuse is a contempt of court: UCPR rule 33.12.

A party served with a notice to produce to court, requiring a document or thing to be produced to the Court, must comply with the notice without the need for any subpoena for production: UCPR rules 34.1-34.2. At common law, there was no obligation on a person on whom a notice to produce had been served to produce any document, the consequence of non-production being that otherwise inadmissible secondary evidence of the document could be adduced by the party serving the notice: H. H. Glass (ed), Seminars on Evidence (Law Book Co, Sydney, 1970), Chapter 1 (by A.R. Moffitt). The element of compulsion was introduced by the Supreme Court Rules 1970 NSW, Part 36 rule 16, the template for UCPR rules 34.1 – 34.2: Hogan and O’Leary, op. cit., paragraph [23.302].

A subpoena to produce and a notice to produce to court may specify one or more identified documents for production to the Court. Customarily, however, they specify classes of documents (described generically) for production.

In March 2012, in exercise of a power for which CPA section 15 provides, the Chief Justice issued a practice note in the following terms (with emphasis added).

Practice Note SC Eq 11 was issued as the Court’s response to widespread concern that procedures for “the discovery of documents“ (generically, “disclosure of documents“) were being abused to the point of impeding the orderly conduct of proceedings, and imposing on opposing parties prohibitive costs and an unacceptable risk of onerous costs orders: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393 at [64]-[66]; Leighton International v Hodges [2012] NSWSC 458 at [4]-[7]. In essence, as an aid to a focus of attention on the real issues in dispute the Practice Note requires parties, in the ordinary course, to put their best case forward in the service of evidence (implicitly, after the close of pleadings, if any) before expectation of any form of order for “disclosure” of documents.

Probate law and practice does not fit neatly into the conceptual framework of Practice Note SC Eq 11. That is because:

Nevertheless, the Practice Note applies, in terms, to the conduct of the Probate List in the Court’s Equity Division.

It does not, in terms, apply to the deployment of subpoenas for the production of documents or notices to produce to court, but similar considerations may inform decision-making about the deployment of subpoenas and notices to produce: Re Mempoll Pty Ltd [2012] NSWSC 1057 at [12]; Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [55].

Its field of operation is the provision of “guidance” against a premature, or unnecessary, resort to procedures for “disclosure of documents”. It requires a party who seeks a “disclosure order” to make disclosures about his, her or its own case, either by service of evidence in the principal proceedings or evidence justifying the application for a disclosure order.

In proceedings in the Probate List, on an application for leave to issue subpoenas for production of documents or to serve notices to produce to court (or, perhaps more often, on an application to set aside a subpoena or notice to produce given that dates for the return of subpoenas and notices to produce may be given administratively by the Court’s Registry without full inquiry about case management considerations), the topics canvassed by the Court may include those identified in paragraphs 4-6 (inclusive) of the Practice Note:

Parties to a dispute about subpoenas and notices to produce in the Probate List need to be able to identify the “interest” in the proceedings of each party as a foundational consideration. A party will have a sufficient “interest” if he, she or it has a right which will be affected by a disputed grant of probate or administration: Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [49].

A sufficient interest having been identified, a foundational inquiry underpinning any order the Court might make is: What are the real issues in dispute in the principal proceedings?

Parties should be in a position to address that inquiry by reference to the standard grounds for challenging a will: (a) absence of due execution; (b) absence of testamentary capacity; (c) absence of knowledge and approval; (d) fraud; (e) undue influence (coercion). If there is perceived to be another ground of challenge, it needs to be exposed to analysis.

An inability to address the grounds of challenge to a will, and to demonstrate a reasonable connection between a ground relied upon and each subpoena or notice under review, might be a critical factor against allowance of such process.

The use of a subpoena for the production of documents or a notice to produce to circumvent the Practice Note may constitute an abuse of process: Azzi v Volvo [2006] NSWSC 283 at [11]; Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502 at [23]-[24].

If a subpoena for the production of documents, or a notice to produce, is served (without the leave of the Court) before the close of pleadings or before the service of affidavits setting out the nature of a party’s case, the existence of the Practice Note highlights a need for court process of those types to be supported by an identifiable, proper forensic purpose.

If a subpoena or notice to produce is not supported by a proper forensic purpose, or if it is oppressive in nature or scope, or if its deployment is unreasonable in the prevailing circumstances, it is liable to be set aside as an abuse of the processes of the Court or, at least, as inappropriate upon an application of case management principles.

In this context, what is, or is not, appropriate upon an application of case management principles will be governed by identification of real issues in dispute in the principal proceedings; the reasonableness of the deployment of the subpoena process in the particular case at the particular time; and the proportionality of costs involved in the use of the subpoena process, at the particular time, in the particular proceedings.

Consideration of questions about proper forensic purpose, procedural oppression and case management principles generally need to take into account the issues in the particular case, bearing in mind the location of the onus of proof on particular issues and the reasonableness of any inquiry sought to be advanced.

Allegations of fraud and undue influence need to be approached with caution. They are more easily made than justified. They hold an allure for disappointed beneficiaries which sometimes transcends cold rationality.

Each case ultimately depends on its own facts.

Probate proceedings have several idiosyncratic features (apart from an ever-present, potential need to evaluate evidence concerning the conduct or words of a person, or persons, “absent” by reason of death or incapacity):

In the disposition of probate proceedings, an exercise of the Court’s costs jurisdiction may require the Court to make an allowance for the possibility that the circumstances of the particular case led reasonably to an investigation of a document propounded as a will. In NSW, the costs jurisdiction in probate is generally described by reference to Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709F. As White J explained in Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562, the Court’s approach has historical origins in Mitchell v Gard (1863) 3 Sw & Tr 257; 164 ER 1280.

Probate proceedings commonly require preliminary inquiries that not only involve a cost, but also require curial assistance. That assistance is commonly sought via the issue of subpoenas for the production of documents, the service of notices to produce to court, orders for the filing of affidavits on contentious issues and directions generally.

Proceedings for admission of a will to probate traditionally involve a unique combination of principles relating to the (legal) onus of proof and a shifting (evidentiary) onus arising from the “presumptions” of fact associated with procedural steps customarily taken in the process of execution of a formal will.

A modern standard exposition of these principles is found in the judgment of Meagher JA (with whom Basten and Campbell J JA agreed) in Tobin v Ezekiel (2012) 83 NSWLR 757 at [43]-[ 49] and [51]-[53]:

In probate practice, allegations of “undue influence” and “fraud” are fundamentally different concepts: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; (2007) 14 BPR [98369] at [61] and [63]-[69]. To prove “undue influence” in probate, it must be shown that the testator did not intend and desire the disposition of property made by a will; it must be shown that he was coerced into making it. “Fraud”, sufficient to result in the invalidation of a testamentary disposition, is concerned with misleading or deceptive conduct; with fraud, there is no overpowering of the volition, no coercion. Whereas “undue influence” coerces a testator, “fraud” misleads him.

The traditional probate presumptions are presumptions of fact (not law), liable to be rebutted by evidence, but their gravitational pull on the conduct of an application for admission of a will to probate is substantial.

The increasing prevalence of applications for admission of an “informal will” to probate may, in time, call into question the utility of analyses in terms of “presumptions”. I repeat here what I wrote in Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107 at [18]-[24]:

That the traditional language of probate law and practice needs to be understood in a contemporary setting may be illustrated by two judgments of the Court of Appeal.

In Zorbas v Sidiropoulous (No. 2) [2009] NSWCA 197 at [64]-[65] Hodgson JA (with whom Young JA and Bergin CJ in Eq. agreed) wrote as follows:

Young JA (with whom Bergin CJ in Eq. agreed) made the following additional observations at [94]-[95]:

In Carr v Homersham (2018) 97 NSWLR 328 at [5]-[6] and [41]-[46] Basten JA (with whom Leeming JA agreed) wrote the following:

In probate proceedings, problems commonly encountered by a person who has an expectation of inheritance by will or who seeks to challenge the validity of a will include the following:

Where there have been a succession of testamentary instruments, their terms and validity may determine whether a person who seeks to participate in an estate has a sufficient “interest” to do so.

Although a determination of testamentary capacity must be made as at a particular time (usually, the time of execution of a will but, exceptionally, as recognized in Bailey v Bailey (1924) 34 CLR 558 at 567 and 572, at the time when instructions were given for preparation of the will), the evidence bearing upon an assessment of capacity usually traverses a period of declining health on the part of the will-maker.

An inability to access medical, or other, records (by subpoena or otherwise) might be a factor in explanation of delay attending a challenge to a will or the pleading of a case in probate proceedings: Photios v Photios [2019] NSWCA 158 at [63] and [65].

It is generally in the interests of all persons with a bona fide interest in administration of a deceased estate that potentially competing wills, and information bearing upon their validity, be made available to all interested parties sooner rather than later. A countervailing consideration is a need to limit the extent to which “discovery processes” are used, unreasonably, to construct a speculative case. Hence, a need for case management of particular proceedings.

Section 150 of the Probate and Administration Act 1898 NSW and section 54 of the Succession Act 2006 NSW provide similar, but not identical, statutory entitlements for the “discovery” and production of wills and other testamentary instruments.

PAA section 150 is in the following terms:

SA section 54 is in the following terms:

The special public interest character of an application for admission of a will to probate (or for revocation of a grant made in respect of a will the validity of which is contested) manifests itself in the Court’s concern that evidence about the circumstances in which a will was prepared and executed be available to the Court and, on an application of case management principles, all parties with an interest in the proceedings.

That concern may be illustrated by reference to three examples. A common denominator is the Court’s power to control its own process (Azzi v Volvo [2006] NSWSC 283 at [4]), remembering that a grant of probate or administration is both an order of the Court and an instrument of title (Estate Kouvakis [2014] NSWSC 786 at [228]-[233]) the making or revocation of which is governed by the purpose served by the probate jurisdiction (ibid [211]-[217]).

First, as discussed by the English Court of Appeal in Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033, a person involved in the preparation or execution of a will, or charged with responsibility as an executor for administration of a deceased estate, may have an obligation, when called upon to do so, to make timely disclosures about the circumstances in which a will was prepared or executed.

The Court of Appeal (constituted by Buckley, Shaw and Brandon LJJ), in a judgment delivered on 21 February 1979 but only reported in 2000, made the following observations (with editorial adaptation):

These observations were made in response to a recommendation made by the Law Society of England and Wales to solicitors practising in that jurisdiction, first published in the Law Society’s Gazette in September 1959, which (as extracted by the Court of Appeal at [2000] WTLR 1036) was in the following terms:

In concurring with the observations of Brandon LJ (which Shaw LJ also did), Buckley LJ made the following additional observations (at [2000] WTLR 1046-1047):

The Queensland Law Society Ethics Centre has issued to Queensland solicitors a “Guidance Note” entitled Guidance Note for Members - Disputed Wills (Contested Probate Matters) which embraces English probate practice referrable to Larke v Nugus in terms which include the following:

In my opinion, both the “principle” stated in Larke v Nugus and the “Practice Pointers” published in the Queensland “Guidance Note” (well-intentioned though they are) suffer from impediments to their implementation in practice:

Each of these problems can be addressed by orders made in exercise of the Court’s case management powers.

Secondly, where, on an exercise by the Court of its probate jurisdiction, a question arises as to whether a will was or was not duly executed, a witness to execution of the will is regarded as a witness of the Court, with a consequence that, under the general law, an entitlement to legal professional privilege which might otherwise attach to documentation evidencing execution of a will does not preclude the Court, upon an exercise of its case management powers, from making an order that (to the extent, at least, that it deals with the subject of attestation and execution of the will) the document be produced to the Court for the purpose of assisting the Court in its search for the truth pertaining to due execution, or otherwise, of the will: Re Estate of Fuld, deceased [1965] P 405 at 409F-411B; Re Estate Pioerobon, deceased [2014] NSWSC 387; Boyce v Bunce [2015] NSWSC 1924 at [145] et seq.

The “Rule in Re Fuld” is reinforced by section 121 of the Evidence Act 1995 NSW, which provides that Division 1 of Part 3.10 of the Act (relating to the admissibility of evidence the subject of client legal privilege) “does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died.”

Thirdly, as explained by Young JA in Zorbas v Sidiropoulous (No. 2) [2009] 197 at [95], lawyers for the parties in probate proceedings, “are obliged to assist the Court by putting before the Court all the expert [medical] material that they have collected, whether favourable or unfavourable, and not merely place before the Court those experts who have finally agreed with their client’s case”.

Young JA’s observations are reinforced by the provisions of CPA s 56(3), which provides that “[a] party to civil proceedings is under a duty to assist the Court to further the overriding purpose [identified, in CPA s 56(1), as the facilitation of the just, quick and cheap resolution of the real issues in the proceedings] and to that effect to participate in the processes of the Court and to comply with directions and orders of the Court”.

Investigation of the circumstances in which a testamentary instrument was prepared and executed often leads to inquiries of a solicitor who attended to that process. Sometimes, but not always, that solicitor acts for a party to contested probate proceedings.

In the absence of a grant of probate or administration, no party generally has an entitlement to inspection of the client file, or other records, of the solicitor evidencing the process of preparation and execution of a will. In those circumstances, in the absence of agreement of all parties interested in the estate of the deceased, an order of the Court authorising disclosure of information which might otherwise be confidential to the estate may be required: (a) in aid of due administration of the estate; and (b) for protection of the solicitor from exposure to disciplinary consequences of an unauthorised disclosure.

Considerations of fairness in the conduct of contested proceedings, if not a need to preserve evidence, may justify a subpoena for production of the solicitor’s “file” designed to bring it under the control of the Court and, on an application of case management principles, made available to all parties as soon as may be practical.

It may be in the interests of all persons interested in due administration of a deceased’s estate that a solicitor’s file, or other records, evidencing the preparation and execution of a will be produced to the Court so that they can be available to the Court and, in management of contested proceedings, the parties.

It is not uncommon for a judge of the Court, in an endeavour to cut through the congestion of disputation about subpoenas and notices to produce, to order that one or more of the parties to probate proceedings file and serve, within a specified time, an affidavit, or affidavits, deposing to the circumstances in which a will was prepared or executed.

Upon an application of case management principles, it is open to the Court, on the application of an interested party or on its own motion, to order that a solicitor (or other person) who prepared, or arranged for execution of, a will explain the circumstances in which the will was prepared and executed. Such an order might require the person to whom it is addressed to attend before the Court for examination: CPA section 68; Payoja Pty Ltd v 284 Bronte Road Developments Pty Ltd (2006) 67 NSWLR 1. However, in most instances, it is likely to be made, at least in the first instance, in the form of an order for the provision of an affidavit, or affidavits.

If such an order is made on the application of a party to proceedings, the Court may condition the making of an order upon an undertaking, or order, that ensures that party will, in the first instance, pay the reasonable costs of compliance with the Court’s order, such costs to be assessed by the Court if not agreed. UCPR rule 33.11 (which empowers the Court to order that the issuing party pay the amount of any reasonable loss or expense incurred in complying with a subpoena) provides a template for such an undertaking. In an appropriate case, an undertaking for the payment of costs might be secured by an order for a payment into court.

In making such orders, the Court may require that any affidavit directed towards provision of an explanation of the circumstances in which a will was prepared, or executed, be filed in the Court, without service on any party, so as to ensure that the Court controls deployment of the affidavit, emphasising that it is in the nature of a report to the Court.

If an order (for the provision of an affidavit explaining the circumstances in which a will was prepared or executed) is made against a person who is not a party to the proceedings before the Court, or a solicitor for such a party, the Court should ordinarily reserve to the person to whom the order is addressed liberty to apply to the Court for an order that the order be discharged or varied. On such an application, a party who supports the order for disclosure may bear a forensic onus of persuading the Court that the order for disclosure should be maintained.

Prudentially, an application for an order (for the provision of an affidavit explaining the circumstances in which a will was prepared or executed) should be accompanied by an estimate of the reasonable costs of compliance with the order – agreed (if practicable) with the person required to comply with the order.

Subject to any contrary order by a judge, in the conduct of the Probate List an order for the provision of an affidavit explaining the circumstances in which a will was prepared or executed can be made by a registrar, not merely a judge of the Court. Such an order falls within the delegation of powers to registrars (effected by CPA section 13 and SC Del 10 Part 1 and Part 3 items 8, 9, and 11) by reference to CPA section 61 and UCPR rule 2.1 (a rule equivalent of CPA section 61), reinforced by CPA section 68 and the power (conferred by CPA section 86) to make orders on terms. These powers of a registrar are additional to those a registrar has under Part 78 of the Supreme Court Rules 1970 NSW (“the Probate Rules”), rule 94.

As with a solicitor’s file, it may be in the interests of all persons interested in the administration of a deceased estate that medical, or similar, records be produced to the Court so that they can be available to the Court and, in management of contested proceedings, the parties.

In recent days, those records may well include records of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) relating to proceedings concerning questions about guardianship, financial management or a review of an enduring power of attorney or an appointment of an enduring guardian.

Procedures for the disclosure of information in probate proceedings need to be flexible enough to accommodate a disclosure of information deemed timely in management of the particular case.

Deployment of the subpoena process is better calculated to achieve a just outcome in probate proceedings if subpoenas for the production of documents are issued, and notices to produce are served, on notice to all parties actively participating in proceedings.

A failure by a party (upon whose application a subpoena for the production of documents is issued, or who serves a notice to produce to court) to provide to all other parties reasonable notice of the fact of issuance of the subpoena, or service of the notice to produce to court, might be a factor to be taken into account in determining whether or not the subpoena process has been abused.

It might be taken into account, if not on an application to set aside a subpoena or a notice to produce, on an application for access to “subpoenaed documents” in the custody of the Court.

Although orders for access might be commonly made, they remain in the discretion of the Court; a discretion exercised by reference to case management principles. They are no mere formality.

General principles governing the use of subpoenas (and, by analogy, notices to produce to court) are generally described by reference to the analysis of a “three step” process in Waind v Hill & National Employers Mutual Association Ltd [1978] 1 NSWLR 372 at 381-386.

The first step involves the production of documents to the Court in answer to a subpoena, or articulation of an objection to the subpoena and the Court’s determination of any such objection: [1978] 1 NSWLR 381E and 381G-382F.

The second step involves the Court’s determination of applications for access to documents (produced on subpoena) for the purpose of inspection: [1978] 1 NSWLR 381E-F and 382G-385E.

The third step involves the admission of subpoenaed documentation into evidence on the hearing of a claim for relief, or its rejection as inadmissible: [1978] 1 NSWLR 381F and 385F-386B.

At the time of the first step, a person who objects to a subpoena may move the Court to have it set aside on the ground that it was improperly issued or, in a number of ways, an abuse of the power to compel production of documents. It is at this stage (commonly by reference to Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN 215) that a subpoena is said to be liable to be set aside if it is used to obtain discovery or, because its terms are so wide, it is oppressive.

Small’s case (at 38 SR (NSW) 575) is the classic source for a reference to “a fishing expedition” as an inappropriate deployment of a subpoena for the production of documents as a means of obtaining unauthorised discovery. Jordan CJ there made the following observations (with editorial adaptation):

A more graphic description of a party on a “fishing expedition” can be found in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254: “…a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.”

At the time of the second step, subpoenaed documents are under the control of the Court, and access to them is determined by reference to what is necessary for there to be a proper determination of the proceedings. The crucial question in relation to the exercise of that discretion is whether documents have apparent relevance to the issues for determination.

At the third step the focus for attention is on the admissibility of documents tendered as evidence.

Particular care in the deployment of subpoenas and the like may be required in case management of an application (under Division 2 of Part 2.2 of the Succession Act 2006 NSW) for the authorisation of a “statutory will” on behalf of a person lacking testamentary capacity. Upon such an application a deployment of the Court’s processes for the compulsory production of documents needs to be viewed through the prism of the incapacitated person and the protective nature of the jurisdiction conferred by the legislation which governs its exercise: Re MP’s Statutory Will [2019] NSWSC 331 at [93]-[105].

Subject to one qualification, each motion presently before the Court for consideration must be viewed through the prism of “the first step”, but anticipating at least an application in due course for access to any documents produced to the Court.

Attention here focuses upon whether the subpoena process is being used improperly for a form of “discovery”. In particular, whether there is an identifiable, proper forensic purpose in support of the subpoenas and notices to produce under review; whether they are, in nature or scope, oppressive; and whether, on an application of case management principles, they should be allowed in aid of a just determination of real issues in dispute.

The qualification is that, in the second set of proceedings, documents have been produced to the Court by Concord Hospital in answer to the subpoena addressed to it. Those documents must be viewed through the prism of “the second step“, informed by debate on “the first step” about proper forensic purpose and oppression. An abuse of the processes of the Court attending the issue and service of a subpoena for the production of documents cannot necessarily be taken to have been set right by a production of documents in answer to the subpoena: Cf, Owners-Strata Plan No 76902 v Roads and Maritime Services [2017] NSWSC 528 at [20]. Case management principles govern decision-making about access to “subpoenaed documents” in the custody of the Court no less than they apply to decision-making about the issue or setting aside of subpoenas: Rinehart v Rinehart [2018] NSWSC 1102 at [150]; Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [50].

By means of subpoenas for the production of documents or a court order for the production of documents, the notice of motion filed by the defendant seeks two classes of documentation:

On the hearing of the motion, the defendant supplemented it with an oral application for a direction that the plaintiff discloses the identity of the deceased’s doctors and other medical professionals not known to the plaintiff. That application, in effect, was an application for leave to administer interrogatories, conceptually a form of “discovery of facts” as distinct from “discovery of documents”.

The defendant’s notice of motion was supported by an affidavit sworn by her solicitor on information and belief.

Based on that affidavit, the defendant, in her written submissions, advanced the following case (omitting footnotes):

In the absence of elaboration of what the defendant anticipates may be her allegation of “undue influence”, I assume that she means “probate undue influence”; that is to say, “coercion” as explained in Winter v Crichton (1991) 23 NSWLR 116 at 121-122. A glance at the will immediately suggests an impediment to such an allegation; the deceased’s execution of the will was attested by a solicitor experienced in the practice of succession law. Anything is possible, but an allegation that execution of the will was procured by coercion might be thought, in that context, to be entirely speculative and to have doubtful prospects of success.

An allegation of “equitable undue influence” might be open (Bridgewater v Leahy (1998) 194 CLR 457 at [62]-[63]; Boyce v Bunce [2015] NSWSC 1924 at [33] et seq) but no factual foundation for any such possibility has been suggested. The highest the defendant’s submissions go towards an allegation of “equitable undue influence” is a passing footnote citation of Thorne v Kennedy (2017) 263 CLR 85 at [30]-[36], with a suggestion that the same principles might be applied in the context of probate law. That submission does incomplete justice to the different perspectives of the equitable and probate jurisdictions of the Court.

A fundamental flaw in the defendant’s submissions is a failure to appreciate that proceedings on an application for probate are generally governed by a process of pleading (directed towards identification of real issues in dispute) before any process of “discovery” or “interrogatories”. This is implicit in Practice Note SC Eq 11, but it has a broader provenance. Pleadings govern discovery, not the reverse.

A danger of allowing proceedings to be driven by “discovery” procedures absent a closure of pleadings is that they lack direction for want of identification of real questions in dispute, and “discovery” processes can easily become captive to a perceived, open-ended necessity for further information. An illustration of this tendency is found in the defendant’s speculation that assistance might be sought from a geriatrician before any defence is filed.

The affidavit of the defendant’s solicitor in support of the motion suggests that, at this stage of the proceedings and subject to review in light of further information which may come to hand, the defendant has a sufficient basis for the filing of a defence challenging the validity of the contested 2014 will on the ground of a want of testamentary capacity. If so, a defence should be filed limited to that ground of challenge. A need for such a defence to be amended should not be anticipated, or feared.

I note, without pausing, that correspondence between the parties’ respective solicitors foreshadows the possibility of a challenge by the plaintiff to the propriety of the transaction identified in paragraph 10(a) of the defendant‘s written submissions. All the more reason to keep the probate proceedings within reasonable bounds. The deceased’s estate needs an authorised representative if inter vivos transactions involving the deceased are to be the subject of litigation.

Presentation of the defendant’s case in support of the motion invites an apprehension that a principal object of the motion is to obtain “discovery” (in classic terminology, by way of a “fishing expedition”) to explore potential for an allegation that execution of the contested will was procured by undue influence, an allegation on which the defendant bears the onus of proof.

Upon an assumption that the defendant files a defence alleging a want of testamentary capacity at the time of execution of the contested will, and a cross claim seeking a grant of administration in respect of an earlier testamentary instrument, a grant of leave to issue subpoenas for production of medical records, and for production of the deceased’s solicitors’ file, may be appropriate.

Practice Note SC Eq 11 requires that, save in exceptional circumstances, parties must serve their affidavits in the principal proceedings before the Court will make an order for disclosure of documents. Some flexibility on this may be required in preparation of probate proceedings for a hearing.

If permitted (in accordance with UCPR rule 31.19 and Practice Note SC Eq 5), the evidence of a medico-legal expert is likely to require access to contemporaneous medical records, as well as lay affidavits to be relied upon at a final hearing. As a general rule (subject to adaptation in each case, as the nature of the case may require) parties should expect to be required to file their pleadings, and to serve their lay affidavits, before subpoena procedures are engaged unless they agree upon an earlier issue of subpoenas to bring within the control of the Court documents of common interest (usually, wills; medical reports; and solicitors’ will files) to abide the Court’s case management decisions about access.

At this stage of the proceedings, the defendant has no proper forensic purpose in seeking, in advance of pleading, the issue of subpoenas (or an equivalent order under CPA section 68) for the production of:

Nor is it appropriate, at this stage of the proceedings, to allow the defendant, in effect, by an order under CPA section 61, to administer interrogatories directed to identification of all the deceased’s treating doctors and other medical professionals.

If the proceedings are not to be diverted by undue focus upon discovery-type procedures, the defendant should be required, without further delay, to plead to the plaintiff’s statement of claim.

If the defendant files and serves a defence placing testamentary capacity in issue, she can direct a written request to the plaintiff which, if not responded to constructively by the plaintiff, can be the subject of a direction for the provision of the information sought. In the meantime, nothing is required. That does not mean that the plaintiff should not engage constructively with the defendant, only that I am not minded to make a formal order compelling the provision of information in advance of the defendant filing a pleading.

Accordingly, subject to allowing the parties an opportunity to be heard as to necessary directions and questions of costs, I propose to make the following orders:

If the defendant: (a) at least, files a defence challenging the validity of the contested 2014 will on the ground of a want of testamentary capacity, and a cross claim seeking a grant of administration in respect of an earlier testamentary instrument; and (b) serves her lay affidavits in the principal proceedings, I anticipate that it would be appropriate for the defendant to be granted leave to issue subpoenas for the production of the deceased’s medical records and the file of her solicitors relating to the preparation and execution of the contested will.

It would also be appropriate if the parties were to agree on an earlier engagement with the subpoena process.

The plaintiffs’ notice of motion to set aside the defendant’s subpoenas and notices to produce is underpinned by a concern that the defendant is seeking to agitate issues not genuinely in dispute in the principal proceedings. Once again, identification of real issues in dispute has central importance.

There is but a lingering presence of Practice Note SC Eq 11 because, although the defendant appears to have served subpoenas and notices to produce before serving all his lay evidence, in written submissions dated 8 March 2019 he recorded an understanding that all lay evidence had, by that time, been served. As had a full set of pleadings.

The defendant’s pleadings are unusual in that, by a cross claim, he invites the Court, inter alia, to pass over all the known wills of the deceased (some 15 or 16 of them, most if not all, prepared and executed with the assistance of a solicitor) so as to find that the deceased died intestate. He also advances, on an alternative claim for relief, an inconsistent claim for one of the several allegedly invalid wills to be admitted to probate, backed up by a claim for family provision relief. By his cross claim, he appears to have assumed an onus of proving that all the wills not propounded by any party (but said by the plaintiffs to have been valid) were invalid for a want of knowledge and approval on the part of the deceased as to their contents.

This idiosyncratic approach may be a legacy of an interlocutory challenge by the plaintiffs (not finally determined by the Court) to the defendant’s standing to oppose admission of the deceased’s last (2017) will to probate. On one view, the defendant lacks standing to challenge that will because he does, or may do, better under it than under the 2015 will he propounds.

The plaintiffs’ apprehension that the defendant’s subpoenas and notices to produce go beyond what is necessary for the adjudication of real questions in dispute is not without foundation.

On 9 July 2018 the defendant commenced the process of definition of issues for the Court’s determination when he filed a caveat in the following terms (with emphasis added):

On an application by the plaintiffs for an order that the caveat cease to be in force, on 3 December 2018 I made an order that the defendant file and serve short written submissions setting forth, inter alia, the grounds upon which he challenges the validity of any wills under challenge by him.

On 3 December 2018 I also made an order that no access be granted to any party to any documents produced on subpoena pending further order of the Court.

On 6 December 2018 the defendant filed written submissions in which he recorded that he challenged the wills of the deceased respectively dated 8 February 2017 and 13 March 2017 on the grounds of: (a) a lack of testamentary capacity; and (b) a lack of knowledge and approval. Those submissions made no reference to a challenge to the validity of any other will of the deceased or to any challenge on the ground of undue influence.

On 10 December 2018 I recorded in a formal notation that the plaintiffs propounded the deceased’s will dated 13 March 2017 and the defendant propounded the deceased’s will dated 5 November 2015. The defendant did not at that time plainly advance a contention that all of the deceased’s wills were invalid for a want of knowledge and approval. Nor did he foreshadow a contention that, despite a multitude of wills executed by the deceased, she must be taken to have died intestate.

The case management directions I gave consequentially upon that notation included: (a) an order that the proceedings proceed by way of pleadings; (b) an order, made by consent, that the plaintiffs be granted special letters of administration pending the final determination of the proceedings; (c) an order that the plaintiffs file and serve an affidavit or affidavits deposing to the facts and circumstances relating to preparation and execution of the deceased’s will dated 13 March 2017; and (d) an order that the defendant file and serve an affidavit or affidavits deposing to the facts and circumstances material to each ground upon which he challenges the validity of the wills respectively dated 8 February 2017 and 13 March 2017.

The plaintiffs filed their statement of claim (seeking a grant of probate of the deceased’s will dated 13 March 2017) on 18 December 2018. On 16 January 2019 the defendant filed a defence (which, as foreshadowed, challenged the validity of the will dated 13 March 2017 on the grounds of a want of testamentary capacity and a want of knowledge and approval), together with a statement of cross claim which went beyond the foreshadowed claim that the deceased’s will dated 5 November 2015 should be admitted to probate. It went beyond the foreshadowed claim to a grant by alleging that: (a) all of the deceased’s wills were made without her knowledge and approval; and (b) if the deceased did not die intestate, he should be granted family provision relief.

The defendant’s statement of cross claim may be technically embarrassing insofar as it alleges (albeit in the alternative) that the deceased’s will dated 5 November 2015 is invalid because of a want of knowledge and approval and that the same will should be admitted to probate, implicitly on the basis that the deceased executed it knowing and approving its contents. The rules of pleading (in particular, UCPR r 14.18) permit allegations of fact, and claims for relief, to be made in the alternative: Photios v Photios [2019] NSWCA 158 at [72]. However, they do not countenance a pleading that has a tendency to cause prejudice, embarrassment or delay or is otherwise an abuse of process. A pleading with either of those qualities is liable to be struck out: UCPR r 14.28.

No application has been made to strike out the statement of cross claim, or for its summary dismissal, in whole or part, but the plaintiffs contend that there can be no real issue as to the validity of the deceased’s pre-2017 wills. There is merit in this contention, not only in light of the defendant’s inconsistent pleading relating to the deceased’s will dated 5 November 2015, but also having regard to: evidence of the deceased’s solicitor about the course of his dealings with the deceased, in English, over several years; the number of wills challenged by the defendant in his cross-claim; the length of time over which those wills were prepared; and imprecision in the defendant’s allegation of a want of knowledge and approval effecting all of the deceased’s known wills.

The defendant’s statement of cross claim particularised his general allegation of a want of knowledge and approval of any will in the following terms (which are repeated in the defence, directed specifically to the will dated 13 March 2017), with editorial adaptation:

These particulars hint at an unarticulated challenge to the deceased’s testamentary capacity to make any will. They allude to the first three elements of testamentary capacity classically stated by Banks v Goodfellow (1870) LR 5 QB 549 at 565: “It is essential to the exercise of [the power to make a will] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; [and] shall be able to comprehend and appreciate the claims to which he ought to give effect. …”

The defendant’s “particulars” of a want of knowledge and approval cannot be taken, by sleight of hand, to have the effect of advancing an allegation of testamentary incapacity Particulars cannot rise above the pleading they particularise.

In conformity with directions given on 10 December 2018, the second plaintiff (a principal in the firm of solicitors acting for the plaintiffs in these proceedings) on 15 February 2019 swore an affidavit in which (repeating statements in an earlier affidavit sworn by him on 8 October 2018) he deposed to the circumstances in which the will dated 13 March to 2017 was prepared and executed. He also deposed to having acted for the deceased in the preparation and execution of 15 wills (including the will dated 5 November 2015) in the period between 2003 to 2017 inclusive.

In his earlier affidavit the third plaintiff deposed to the following (in paragraph 7): “At no stage [in the period between 2003 to 2017] did I have any concerns about [the deceased’s] capacity to understand either the contents of her will, or what I was telling her in English about her various (and many) draft wills. While English was not her first language, [the deceased] communicated perfectly well in English. If there were aspects of her will she was not happy with, she would give me clear instructions to amend them or we would agree to meet again”.

An oddity of the defendant’s subpoenas and notices to produce, which suggests a consciousness of a need to avoid oppression, is that they seek the production of documents limited to the period between 2003 – 2017, though the defendant’s pleadings challenge wills of the deceased going back to 1995.

The defendant’s subpoena addressed to Concord Hospital sought production of the following class of documents:

On the defendant’s pleadings, I am not satisfied that there is any proper forensic purpose in the defendant having access to any hospital records bearing upon the deceased’s medical condition otherwise than such as might bear upon the wills dated 8 February 2017 and 13 March 2017. If there is to be any greater access to subsequent materials, the defendant’s pleadings need to be put on a more rational foundation. As they stand, the case the defendant seeks to advance on his cross-claim appears to have, in its inconsistency at least, a tendency to cause prejudice, embarrassment or delay in the proceedings.

The subpoena to the Hospital was filed on 1 November 2018, fully one month before the defendant filed written submissions which implicitly confined his testamentary capacity case to the wills dated 8 February 2017 and 13 March 2017. The defendant’s statement of cross claim implicitly asserts that the deceased had capacity to make the will dated 5 November 2015, which (on an alternative case) he seeks to have admitted to probate.

I have considered the possibility that access to the Hospital records could be forensically relevant to the third, fourth and fifth particulars to the general allegation of a want of knowledge and approval set out in the defendant’s cross-claim. The defendant submits that the state of the deceased’s health from time to time could be relevant to whether she had, or did not have, knowledge and approval of the contents of complex (albeit, to some extent, formulaic) wills. That contention is not without force, but it does not necessarily follow. Nor does it dispel an underlying concern that, by expansive particulars, the defendant seeks to fish for game larger than his pleaded case.

I am not satisfied that the Hospital records are or may be relevant or that, in the interests of justice, they should be made available for inspection by the defendant save insofar as they may bear upon the question of the deceased’s testamentary capacity to make her 2017 wills. The defendant has filed affidavits bearing upon the question of knowledge and approval. He has no obvious need for access to Hospital records created before the date of the deceased’s 2015 will he propounds, or thereabouts. He will have, I anticipate, an opportunity to cross examine the second plaintiff (the deceased’s solicitor) at a final hearing. In fairness to the plaintiffs, and beneficiaries under the 2017 wills, he cannot fudge his generalised allegation of a want of knowledge and approval, referable to so many wills over so long a period of time, by hoping to bolster it with a hint of testamentary incapacity via medical records. In light of his pleadings, as particularised, any application for unrestricted access to the Hospital records appears, at present, to be a “fishing expedition” beyond the reasonable.

Given the state of the defendant’s pleadings, I propose to defer making any decision about his access to the Hospital records until clarification of the case he seeks to make on his pleadings, including what he says about: (a) the validity of the deceased’s will dated 5 November 2015; (b) the location of the onus of proof vis-à-vis wills of the deceased predating the will dated 5 November 2015; and (c) the nature and scope of the particularised allegations of the want of knowledge and approval.

The defendant’s subpoena for production addressed to the solicitors for the deceased (presently also the solicitors for the plaintiffs) seeks production of the following classes of documents (with editorial adaptation):

The notices to produce to court respectively served on each of the three plaintiffs are formulaic in the sense that they seek production of the same classes of documents sought in the subpoena addressed to the solicitors.

In light of the affidavits sworn by the second plaintiff, as the solicitor who supervised the preparation and execution of the deceased’s wills in the period identified in the subpoena, there is little, if any, forensic purpose in any of the notices to produce. In essence, the defendant seeks production of the solicitors’ file, or files, relating to preparation of the deceased’s wills dated 4 June 2008 or thereafter.

On that basis, I propose to allow the subpoena to stand, but to order that the notices to produce be set aside.

If and to the extent the solicitors have file records relating to the deceased’s wills answering the description of the subpoena, those records can be (if need be) produced comparatively easily. In the circumstances of the case, the notice to produce directed to the second plaintiff is simply repetitive at best; there is no suggestion that a notice to produce, as distinct from a subpoena, is required for evidentiary purposes.

I propose to order that the notices to produce directed to the first and third plaintiffs be set aside as oppressive, having regard to the length of the period in respect of which documents are required to be produced, and to the fact that preparation and execution of the deceased’s wills was supervised by the solicitors.

I propose to defer making any order referrable to the subpoena addressed to the solicitors for the deceased until the status of the defendant’s pleadings, and the case he seeks to make, is clarified. There is no suggestion that a production of subpoenaed records is necessary to preserve them against destruction pending further order of the Court.

The proper management of the principal proceedings requires that the state of the defendant’s pleadings, and the case for which he contends by reference to them, be clarified before the defendant is allowed further deployment of the subpoena process.

In order to allow this to be done, I propose, by order of the Court, to call upon the defendant to show cause why his pleadings (and, especially, his statement of cross-claim) should not be struck out or otherwise summarily determined. That is likely to involve consideration, inter alia, of: (a) whether the pleadings are, in whole or part, an abuse of process (Photios v Photios [2019] NSWCA 158); and (b) if not, whether case management orders are nevertheless required to ensure the conduct of a fair and orderly hearing of the parties’ competing claims

If the defendant maintains his contentions about the validity of the wills pre-dating the will dated 5 November 2015, and if he is held entitled to do so, the interests of justice might best be served by an order for the separate, preliminary determination of the question whether the deceased’s last three wills (assessed successively, in reverse chronological order) were valid.

The interests of justice might, in any event, require that an order be made for the separate, later determination of the defendant’s application for family provision relief.

The defendant’s forensic strategy appears to bundle up a broad mix of amorphous allegations, extending over a lifetime, in the expectation of securing an advantage at a final hearing in the character of a roving commission with few constraints upon what is relevant and what is not.

If orders are made for the separate determination of questions, in so many staged hearings as may be necessary for an orderly and fair determination of all questions in dispute, they might have implications for the extent to which documents should be brought into court on subpoena and accessed at this stage of what could be protracted proceedings.

If the defendant maintains his cross-claim in all its dimensions, and is held entitled to do so, considerations of costs might also loom large.

Subject to allowing the parties an opportunity to be heard as to necessary directions and questions of costs, I propose to make orders to the following effect: