Australian Unity Trustees Ltd v Tsatsaronis

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2023 11286

IN THE MATTER of the estate of DIMITRIOS TSATSARONIS deceased

BETWEEN:

AUSTRALIAN UNITY TRUSTEES LIMITED	Plaintiff
v
NIKOLAS TSATSARONIS	Caveator

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JUDGE:	Gobbo AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2023 and 7 December 2023
DATE OF RULING:	22 December 2023
CASE MAY BE CITED AS:	Australian Unity Trustees Ltd v Tsatsaronis
MEDIUM NEUTRAL CITATION:	[2023] VSC 796

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PRACTICE AND PROCEDURE — Rule 8.03(2) of the Supreme Court (Administration and Probate) Rules 2014 (Vic) — Caveat has expired— Circumstances where a Court will “otherwise order” — No order appropriate.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Pitt SC	Moores
For the Caveator	Mr N Tsatsaronis (27 November 2023 only)

Contents

A.. Background

B.. Self-Represented Litigant

C.. History

D.. Legal Principles

E... Plaintiff’s submissions

F... Caveator’s submissions

G.. Analysis

H.. Conclusion

HER HONOUR:

A Background

By summons filed on 29 August 2023 (‘Application’), the plaintiff seeks orders, inter alia:
(a)that pursuant to Rule 8.03(2) of the Supreme Court (Administration and Probate) Rules 2014 (Vic) (‘Chapter III Rules’), the caveat filed by the caveator on 26 May 2023 has expired;
(b)that subject to the requirements of the Registrar of Probates, probate of the Will of the deceased dated 21 May 2006 (‘Will’) be granted to the plaintiff; and
(c)costs.
The plaintiff relies upon the following material:
(a)affidavit in support of the application for probate sworn by Jessica Luca on 22 May 2023 and the exhibits thereto;
(b)affidavit of due execution of Maria Likoudis sworn on 17 May 2023;
(c)affidavit of NAATI accredited translator Niki Baras sworn on 17 May 2023;
(d)affidavit of Lachlan Arthur McKenzie affirmed on 24 August 2023 and the exhibits thereto;
(e)affidavit of Lachlan Arthur McKenzie affirmed on 16 November 2023 and the exhibits thereto; and
(f)written outline of submission dated 16 November 2023.
By Order of Keith JR made on 15 September 2023, the caveator was ordered to file and serve any affidavits upon which he seeks to rely in respect to the Application by 4:00pm on 20 October 2023 and to file and serve an outline of submissions 4:00pm on 13 November 2023. The caveator did not comply with those Orders. The affidavit of Lachlan McKenzie affirmed on 16 November 2023 refers to multiple reminders to the caveator of the terms of the Order of Keith JR made on 15 September 2023 and the need for compliance.
On 27 November 2023, Moore J made orders pursuant to r 77.05(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), that the proceeding be referred to me for hearing and determination.
On 27 November 2023, the Application was listed for hearing. At the commencement of the hearing, the matter was called inside and outside the courtroom. There was no answer to the call by the caveator. After hearing the plaintiff’s submissions on the Application and whilst I was in the process of formulating orders, the caveator arrived. He alleged that he had been sent to the wrong courtroom by Court staff.
Following extensive and wide ranging matters being raised by the caveator from the bar table, including that he was a self-represented litigant,[1] that he had some internet difficulties that made preparing and/or uploading documents difficult,[2] that he was a pensioner of limited means,[3] that he suffered from chronic fatigue[4] and that he had recently suffered dental issues all of which combined to precluded him from complying with the Court’s earlier orders,[5] I determined to provide further time for the caveator to file and serve any affidavit and submissions on which he intended to rely.
[1]Transcript of Proceedings (27 November 2023) 7.18.
[2]Transcript of Proceedings (27 November 2023) 18.26-28; 19.6-19.
[3]Transcript of Proceedings (27 November 2023) 7.27-28.
[4]Transcript of Proceedings (27 November 2023) 7.18; 14.9; 18.10.
[5]Transcript of Proceedings (27 November 2023) 16.21-31; 17.1-22.
On 27 November 2023, I made Orders which required that the caveator file and serve any affidavit or submissions by 4:00pm on 4 December 2023 and otherwise listed the Application for further hearing at 12:00pm on 7 December 2023. In making these Orders, I reminded the caveator of the need for any affidavit and/or submissions to be responsive to the Application. Senior counsel then provided the caveator with a further copy of the Application. The caveator was directed to the self-represented litigants coordinator for further assistance and reminded of the obligation of all parties to litigation to comply with the Civil Procedure Act 2010 (Vic) (‘CPA’). The hearing was specifically listed to commence at 12:00pm to allow time for the caveator to travel from Geelong to the Court.
The caveator did not comply with my Orders made on 27 November 2023.
At 10:48pm on 5 December 2023, the caveator filed a document headed “this is not a legal will” which the caveator described as an affidavit despite the document not being sworn or affirmed (‘Caveator’s Submission’). I have treated this document as submissions only, and for the reasons set out below, have given limited weight to a number of matters raised in those submissions.
On 7 December 2023, the Application was listed for further hearing before me. At the commencement of the hearing, the matter was called inside and outside the courtroom and on the ground floor in the foyer of the William Cooper Justice Centre. There was no answer to the call by the caveator. For completeness, I note that on 27 November 2023 and 29 November 2023, my Associate emailed the caveator to remind the caveator of the adjourned hearing date of 7 December 2023, and on 6 December 2023 my Associate emailed the caveator to advise the caveator of the courtroom location for the hearing and to confirm that the hearing would commence promptly at 12.00pm on 7 December 2023.

B Self-Represented Litigant

As the caveator is self-represented, it is appropriate to set out the applicable principles in respect of the Court’s approach when one of the parties is not represented by a lawyer.
A judge has a duty to represented and unrepresented litigants alike to ensure that the hearing is conducted fairly and in accordance with law.[6] The duty, to assist a self-represented litigant in civil proceedings, requires the judge to provide such guidance to a self-represented litigant as will ensure procedural fairness.[7] What a judge must do to assist a self-represented litigant depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[8] The assistance must be proportionate in the circumstances; it must ensure a fair trial and not afford an advantage to the self-represented litigant.[9]
[6]MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 523; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292; Werden v Legal Services Board [2012] VSCA 278; (2012) 36 VR 637, [53].
[7]Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129, [27] – [29]; Rajski v Citec Corp Pty Ltd (Unreported, NSW Court of Appeal, Samuels JA, 16 June 1986).
[8]Abram v Bank of New Zealand (1996) ATPR 42340, 42347; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 166 ALR 129, [27] - [29] and [33]; Platcher v Joseph[2004] FCAFC 68, [104]; Tomasevic v Travaglini[2007] VSC 337; (2007) 17 VR 100, 130.
[9]Tomasevic v Travaglini[2007] VSC 337; (2007) 17 VR 100, 130.
The Court of Appeal, in Trkulja v Markovic,[10] has identified the proper scope of assistance to be offered to self-represented litigants in the following terms:
In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence. It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.
The High Court has stated that a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. Similarly, this Court has endorsed the proposition that ‘[c]oncealed in the lay rhetoric and inefficient presentation may be a just case’.
It is clear that a judge cannot become the advocate of the self-represented litigant. This is because the role of a judge is fundamentally different to that of an advocate. Further, a judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. Accordingly, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one litigant is self-represented.
[10][2015] VSCA 298, per Kyrou and Kaye JJA and Ginnane AJA at [39] to [41] (citations omitted).
In determining the Application, I have considered all issues raised by the caveator, whether orally at the hearing before me on 27 November 2023, or in the Caveator’s Submission (subject to my observations set out at paragraphs 15 to 16 below) to determine whether there are any grounds on which the caveator can resist the Application. In so doing, my approach has not been to focus on proper form of the Caveator’s Submissions, which I consider is justified given the caveator’s unrepresented status and is consistent with the approach to unrepresented litigants that is summarised at paragraphs 12 to 13 above.
I have read the Caveator’s Submission. To the extent that the caveator describes the submissions as an affidavit, they are not. Moreover, much of what is contained in the submissions are assertions and allegations, many of which are unsubstantiated and a great deal of which are misdirected in the context of the Application before me.
Further, I consider that some of the material contained in the Caveator’s Submission is scandalous and/or irrelevant. In particular, whilst the Court has considered the submissions, the Court nonetheless regards paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, 37, 49, 50, 81, 82, 83, 85, 86, 87, 88, 89, 90, 91 and 101 as largely irrelevant to the Application, and many aspects of, if not the entirety of paragraphs 32, 33, 34, 35, 36, 38, 39, 40, 41, 51, 54, 55, 57, 62, 68, 75, 76, 77, 78, 79, 80, 84, 90, 91, 92, 93, 94, 95, 96, 97, 98 and 99 as scandalous. Whilst it is open to me to make orders under r 27.07 of the Rules, to have parts of the Caveator’s Submission struck out and/or removed from the Court file, I decline to do so only because the caveator is self-represented. However, the hearing of this Application is not the appropriate vehicle for the caveator to advance serious and wholly unsubstantiated allegations of criminality, threats of violence, financial fraud, embezzlement and elder abuse and the Court will give no weight to those matters in determining the Application.

C History

The background to the Application is set out in the affidavit of Mr McKenzie sworn on 24 August 2023 who deposes that:
(a)the deceased was married to Maria Tsatsaronis (‘Maria’) and they had three children, Stella Tsorotes (‘Stella’), Anastasios Tsatsaronis (‘Anastasios’) and the caveator, Nikolas Tsatsaronis;
(b)Maria died in 2008;
(c)in 2014, the deceased appointed two of his children, Stella and the caveator as his financial attorneys;
(d)on 12 July 2019, by order of the Victorian Civil and Administrative Tribunal (‘VCAT’):
(i)Stella and Anastasios were appointed joint guardians of the deceased; and
(ii)State Trustees Limited was appointed the administrator of the deceased;
(e)on 11 June 2021, by order of VCAT, the plaintiff, Australian Unity Trustees Limited (‘AUT’) was appointed administrator of the deceased;
(f)the last Will of the deceased is dated 21 May 2006;
(g)the last Will was duly executed and witnessed and complied with the requirements of a formal will under s 7 of the Wills Act 1997 (Vic);
(h)on 29 July 2022, the deceased died. AUT remained the administrator of the deceased until his death;
(i)an application for probate was filed by the plaintiff, AUT, on 23 May 2023. The plaintiff was the deceased’s VCAT administrator and two of the three executors of the will (Stella and Anastasios) have authorised the plaintiff to make the application for probate, with leave being reserved to the caveator;
(j)the net value of the estate contains tenanted real property and is valued at approximately $3,470,000.00;
(k)the caveator filed a caveat against the grant of probate on 26 May 2023;
(l)the Registrar of Probates issued a notice pursuant to r 8.02 of the Chapter III Rules on 5 June 2023 notifying the plaintiff of the filing of the caveat;
(m)it appears from Red Crest-Probate that the caveator’s grounds of objection were filed at 11.38pm on 5 July 2023;
(n)the grounds of objection were not served on the plaintiff within 30 days in non-compliance with Rule 8.03(3)(a) of the Chapter III Rules;
(o)the plaintiff sought to have the Registrar deal with the application for probate by letter dated 13 July 2023;
(p)by letter dated 18 July 2023, the office of the Registrar of Probates required the plaintiff to issue a summons to have the issues of the plaintiff’s application for probate and the expiry of the caveat determined; and
(q)accordingly, the plaintiff filed the Application presently before the Court.
None of the factual matters set out in paragraph 17 above were contested by the caveator with the exception of allegations concerning the Will. These are dealt with below.

D Legal Principles

Rule 8.02 of the Chapter III Rules provides:
Registrar to give notice of caveat
If there is a caveat against the making of a grant of representation, the Registrar –
(a) shall give notice of the caveat to an applicant for the grant; and
(b) shall give notice to the caveator of an application for the grant.
Rule 8.03 of the Chapter III Rules provides:
Expiry of caveat
(1) Subject to this Rule, a caveat expires 6 months after the date it is lodged.
(2)Subject to paragraph (3), if the Registrar gives notice to a caveator under Rule 8.02(b), the caveat expires 30 days after the notice is given.
(3) A caveat shall not expire by reason of paragraph (2) if—
(a)within the period referred to in paragraph (2), the caveator serves on the applicant and files with the Registrar a statement of the grounds of the caveator's objection to the making of the grant; or
(b) a Judge of the Court otherwise orders.
The effect of rr 8.02 and 8.03 of the Chapter III Rules is that once the notice is given, time begins to run against the caveator and the caveat will expire 30 days after the notice is given unless the caveator within such period serves on the applicant and files with the Registrar a statement of the grounds of his or her objection to the making of the grant, or a judge otherwise orders.
Whilst the plaintiff’s Application principally relies on r 8.03(2) of the Chapter III Rules, alternative relief was sought in the form of directions under r 8.07(2) of the Chapter III Rules. For that reason, it is appropriate that I also note r 8.06(1) of the Chapter III Rules which sets out the types of grounds of objection that a caveator can claim to object to probate. Other grounds which are not included in r 8.06(1) of the Chapter III Rules may, in appropriate circumstances, be included in the grounds of objection (Rule 8.06(3) of the Chapter III Rules). Subject to any direction of the trial judge, the caveator is not permitted to rely on any grounds which were not included in the grounds of objection.
In all cases the onus of proof is on the applicant for the grant of probate to establish that the instrument which is sought to be admitted to probate is the last will of a free and capable testator. Where the circumstances raise the Court’s suspicion, the applicant must remove the suspicion and prove affirmatively that the deceased knew and approved of the content of the will. If suspicion can be removed, the onus is shifted to the caveator to prove facts to displace the prima facie case that arises on the mere proof of capacity and of the fact of due execution.[11]
[11]McKinnon v Voight & Smits [1998] 3 VR 543

E Plaintiff’s submissions

The plaintiff’s primary submission is that by reason of the non-service of the grounds of objection on the plaintiff within 30 days of the notice, and the Court not presently having otherwise ordered, the caveat is deemed to have expired by operation of Rule 8.03(2)(a) of the Chapter III Rules.
The plaintiff accordingly seeks that the Registrar of Probates assess the application for probate and, subject to any requirements the Registrar may have, grant probate of the last will.
As noted above, pursuant to r 8.03(3)(b) of the Chapter III rules, the Court may “otherwise order” that the caveat has not expired.
The plaintiff submits, and I accept, that there are no instances in the Chapter III Rules that give examples of where such an order is required to be made, or may be made. It is up to the Court to assess this issue on a case by case basis. Moreover, there is no judicial consideration or pronouncement in Victoria of the matters that might be taken into account for the purposes of making an “otherwise order” in this context.
The plaintiff further submits that:
(a)the probate jurisdiction in the Supreme Court of Victoria has an inquisitorial role that requires a greater supervision and control of its proceedings than adversarial common law proceedings;[12]
(b)participants in probate proceedings must be mindful that the purpose of the probate jurisdiction is ensuring that the testamentary intentions of the deceased are carried out and the beneficiaries receive what is due to them.[13] The plaintiff contends that there is a discretion to make an ‘otherwise order’, in circumstances where the Court sees fit to do so. But that one particularly compelling reason against making such an order here is that the overriding aim of the Court in probate matters is to get the will admitted to probate and to have the estate distributed in accordance with the will; and
(c)litigants must also be mindful of the overarching purpose of the CPA and their overarching obligations set out in the CPA.[14]
[12]Re Przchodski [2016] VSC 781 at [14] per McMillan J.
[13]Ibid at [15].
[14]Ibid at [21].
At the hearing before me on 7 December 2023, I asked the plaintiff’s senior counsel whether I should have regard to the Caveator’s Submission and consider those both in the context of the relief sought under r 8.03(2) of the Chapter III Rules and also, in the alternative, having regard to r 8.06 of the Chapter III Rules.

The plaintiff’s senior counsel submitted that it was the plaintiff’s primary position that the Application should be granted without the need for reference to r 8.06 of the Chapter III Rules and the matters raised by the caveator in his grounds of objection.
It was further submitted that if the Court were nonetheless minded to consider the caveator’s grounds of objection and the Caveator’s Submission, the Court could be satisfied that there were no matters raised by the caveator that raise the suspicion of Court, as that term is understood in r 8.06 of the Chapter III Rules.
Without descending into the merits of the grounds of objection, the plaintiff’s senior counsel submitted that it was significant that:
(a)the caveator does not contend that the administration of the estate be carried out in any manner other than that which is contained in the Will;
(b)the caveator does not seek that another testamentary instrument be admitted to probate, nor does he even point to the existence of any prior or subsequent will;
(c)despite informing me at the hearing on 27 November 2023 that the deceased’s Will disinherited him, the testamentary disposition in the Will of the deceased effectively operates to provide equally for the deceased’s three children. It is not contended for differently by the caveator in the grounds of objection;
(d)there was no evidence or material or particulars that are directed to a particular point in time proximate to the making of the Will to excite the suspicion of the Court to show a prima facie case for investigation in the terms contemplated by r 8.06 of the Chapter III Rules. There is nothing in the Caveator’s Submission that would constitute a prima facie case in respect of the actual time when the Will was executed. Further, there is no evidence before the Court of the susceptibility of the testator to any sort of undue influence; and
(e)many of the matters raised by the caveator in his submissions (both in his oral submissions at the hearing on 27 November 2023 and in writing) are matters that have occurred inter vivos between the period 2014 and 2019 which significantly post-date the creation of the Will in 2006. For the caveator to demonstrate a prima facie case, he needs to show or give evidence or provide information which is proximate to the creation of the Will in 2006. None has been provided.
Each of these factors, it was submitted, militates against the making of an ‘otherwise order’ and committing the estate to lengthy litigation.
Further, at the hearing on 7 December 2023, senior counsel for the plaintiff further submitted, in respect of the Caveator’s Submission, that they were largely legally and procedurally erroneous in that the caveator contended that:
(a)the Will was an illegal will despite it complying with s 7 of the Wills Act 1997 (Vic) in terms of its formalities;[15]
(b)the effect of the Will was to disinherit him, despite the terms of the Will being clear and providing for a one third distribution to each of the caveator, Stella and Anastasios;[16]
(c)he had a legal entitlement to examine the deceased testamentary interests prior to the passing of the testator, when no such entitlement exists;[17] and
(d)property in Greece does not form part of the estate contrary to the caveator’s assertions.[18]
[15]Transcript of Proceedings (7 December 2023) 40.7-15.
[16]Transcript of Proceedings (7 December 2023) 40.21-26.
[17]Transcript of Proceedings (7 December 2023) 40.27-29.
[18]Transcript of Proceedings (7 December 2023) 41.2-3.
The plaintiff further submitted that:
(a)it was not in dispute that the deceased was widowed and therefore the estate would be distributed in the same way as the Will on an intestacy under the Administration and Probate Act 1958 (Vic), should there be no prior will in existence; and
(b)it is in the best interests of the beneficiaries that probate be granted without further delay so as to allow the plaintiff to carry out the administration of the estate according to the terms of the Will, particularly where the testamentary disposition provided for by the Will does not appear to be in issue (i.e. in the caveator’s grounds of objection).
Finally, in noting each of the above matters, senior counsel properly identified however that the caveator was not without his remedies in the event that probate was granted, for example under Part IV of the Administration and Probate Act 1958 (Vic). Additionally, it should of course be noted that, as a beneficiary, the caveator has the ability to seek information and documents from the executor who will be in a fiduciary office with an obligation to carry out the terms of the Will for the benefit of beneficiaries.

F Caveator’s submissions

The caveator’s grounds of objection filed on 5 July 2023 are not well particularised and includes matters that are discursive and irrelevant. They include allegations broadly as follows:
(a)‘The Will was written in contravention of Administration and Probate 2014 (Vic) s 8.06(1)(f) that the testator acted under undue influence’. In support of this allegation, the caveator refers to a discussion which he alleged occurred sometime in 2015 between he and the testator in which the testator is alleged to have said words implying that he did not know and have knowledge of the Will. That conversation is the only conversation which is cited in support of the alleged undue influence. The other matters which the caveator seeks to rely upon to support his claim of undue influence include:
(i)that his parents were placed in a situation by his siblings, Stella and Anastasios, of having to have the Will verified and signed before Nik and Maria Likoudis. That process was alleged to have been somehow deeply shaming and would have obligated his parents to sign the Will in order not to lose face or bring shame on the family. Again, this submission is devoid of substance and likely misunderstands the entirely sensible course adopted by the testator to have his Will independently witnessed by parties other than his three children each of which is a beneficiary;
(ii)that he and his siblings should have been involved in the making and execution of the Will. That suggestion is entirely misconceived. Children of a testator have no legal right to be involved in the making of their parent’s will. A will is a private instrument; and
(iii)the Will favours his siblings and disadvantages him in respect of a property in Nea Fokea in Greece. The caveator claims that it was his parents intention that this property be shared equally by he, Stella and Anastasios. This submission is incorrect as a statement of fact as the Will provides for an equal distribution of all property between all three siblings.
(b)the proposed administrator is disqualified. The principal complaint by the caveator appears to be that AUT did not, upon receiving the caveator’s complaints about allegedly missing monies belonging to the testator, require a meeting of all three executors and ‘carry out a financial investigation’, and if the facts were as the caveator had alleged, AUT, should have ‘contacted Police and ordered a criminal investigation into the criminal fraud under the Guardianship Act’;
(c)the caveator has a better right because he took over managing the testator’s affairs in June 2014; and
(d)the grounds of objection otherwise include wide ranging assertions of conspiracy, fraud, criminal damage, moral failings, coercive control, physical abuse, intimidation and misappropriation of money. For the purpose of the Application before me, I give no weight to any of these matters which are scandalous, unparticularised and wholly unsupported by any cogent evidence.
At the hearing before me on 27 November 2023, the caveator submitted that:
(a)the Will is not a legal document;[19]
(b)the Will disinherited him;[20]
(c)there are unaccounted monies connected to his father’s affairs[21] and estate;[22]
(d)he had been relentless in contacting the staff assisting self-represented litigants but was not told to serve the caveat and grounds of objection;[23] and
(e)the property in Greece was to go to all three children,[24] which is not what is provided for in the Will.
[19]Transcript of Proceedings (27 November 2023) 8.6-7.
[20]Transcript of Proceedings (27 November 2023) 8.18-19.
[21]Transcript of Proceedings (27 November 2023) 12.23-32; 13.1-9.
[22]Transcript of Proceedings (27 November 2023) 22.9-17.
[23]Transcript of Proceedings (27 November 2023) 13.24-31; 14.1-7.
[24]Transcript of Proceedings (27 November 2023) 14.25-30.
In his written submissions, the caveator submitted that:
(a)the Will is not a legal will and therefore cannot be used to administer probate;[25]
[25]Caveators Submissions, [1].
(b)there ought to be an investigation as to how the Will was created and that Stella and Anastasios should appear before the Court and be cross examined on this issue;[26]
(c)on 21 May 2006, Stella and Anastasios created a fraudulent will;[27]
(d)he has been disenfranchised;[28]
(e)the Will and power of attorney should have been prepared in the office of Maria and the deceased’s solicitors, Whyte, Just and Moore; that independent legal advice ought to have been provided to Maria and the deceased; that each of Stella, Anastasios and the caveator should have been informed of and involved in the making of the Will and that the caveator should have had the ability to examine both the will and power of attorney before they were signed;[29]
(f)the Will is not a legal will and cannot be used to execute probate of the deceased’s estate as it does not represent the wishes of Maria and the deceased who would not have signed it if they understood its ramifications;[30]
(g)even if the Will is a legally sound document, which could be used to determine probate on the deceased’s estate, the reading of probate ought to be suspended until there is a forensic examination to reveal the extent of theft from the estate, with a requirement that all illegally transferred cash and non-cash assets plus interest and damages be returned to the estate before probate is issued;[31]
(h)in the context of complaints about the Will, the caveator contends that:
(i)Stella should appear before the Court and give evidence as to the state of the deceased’s finances on 22 December 2008;[32] and
(ii)Anastasios should appear before the Court and give evidence as to how he had the means to purchase a Volvo and investment property.[33]
[26]Ibid.
[27]Caveators Submissions, [64].
[28]Caveators Submissions, [65].
[29]Caveators Submissions, [66].
[30]Caveators Submissions, [67].
[31]Caveators Submissions, [52].
[32]Caveators Submissions, [53].
[33]Caveators Submissions, [56].

G Analysis

There is no dispute that by reason of the non-service of the grounds of objection on the plaintiff within 30 days of the notice, and the Court not presently having otherwise ordered, the caveat is deemed to have expired by operation of r 8.03(2)(a) of the Chapter III Rules.
The issue before the Court is whether, in all of the circumstances, the Court should ‘otherwise order’ that the caveat has not expired under r 8.03(3)(b) of the Chapter III Rules.
For the reasons that follow, I decline to ‘otherwise order’. The caveat has expired. The Registrar of Probates should assess the application for probate.
As senior counsel for the plaintiff submitted, and I accept, the Court in its probate jurisdiction has an inquisitorial role. This requires a greater supervision and control of proceedings than adversarial common law proceedings.[34]
[34]Re Montalto [2016] VSC 266 at [17] per McMillan J.
Further, as senior counsel for the plaintiff submitted, the aim of the Court in probate matters is to get the will admitted to probate and to have the estate distributed in accordance with the will.
In that context, caveats, in the probate jurisdiction, act as a mechanism for notice from the Court to a party interested in an estate that an application for a grant of probate or letters of administration has been made in respect of a deceased estate. The caveat procedure exists to ensure that estates are administered in an orderly manner and that any issues arising before a grant of probate is made can be investigated and dealt with by the Court. The purpose of this is to ensure that any grant gives effect to the final valid testamentary wishes of the deceased or the intestacy provisions and title to any real or personal property owned by the deceased at the date of their death passes in accordance with these wishes or provisions.[35]
[35]Ibid.
Where a caveator disputes the validity of the last will of the deceased, they must establish standing, or a sufficient interest,[36] to object to the grant of probate and file grounds of objection with particulars that provide a sufficient factual basis to raise a prima facie case.
[36]Re Cockell [2016] NSWSC 349; Re Kouvakas [2014] NSWSC 786; Re Gillard [1949] VicLawRp 67; [1949] VLR 378.
Before me, there was no proper explanation by the caveator as to why he had not served his grounds of opposition. At best, there was an assertion from the bar table that he had not been told that he needed to do so, despite his admission that he had been relentless in contacting the staff assisting self-represented litigants. I do not accept his explanation for the non-service of the grounds of opposition.
Moreover, in this matter, although the caveator has lodged grounds of opposition, it is significant to observe that the caveator does not contend that that the administration of the estate be carried out in any manner other than that which is contained in the Will nor does he seek that another testamentary instrument be admitted to probate. In my view, this weighs strongly against the making of an “otherwise order” which would likely commit the estate to protracted litigation. In those circumstances, I decline to so order.
For completeness, and due to the caveator’s standing as a self-represented litigation, I consider it appropriate that I otherwise address the caveator’s particulars.
The caveator’s particulars are broad, wide ranging, lacking in an evidentiary basis and are inadequate. They would be liable to be struck out.[37]
[37]In re Smith (dec’d) [1951] VicLawRp 53; [1951] VLR 368.
The various grounds of objection to the grant of probate of the Will relied on by the caveator are allegations that should not be made lightly and are required to be determined by applying the principles expressed in Briginshaw v Briginshaw,[38] as that standard is applied under s 140(2) of the Evidence Act 2008 (Vic).
[38][1938] HCA 34; (1938) 60 CLR 336.
As was stated by McMillan J in Re Montalto,[39] in the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate. A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face. Here, the Will was duly executed and is rational on its face.
[39][2016] VSC 266 at [21].
The caveator’s first ground of objection is that the testator was subject to undue influence. This is a serious allegation of an equitable species of fraud. Where undue influence is alleged, the onus lies on the party who alleges it.[40] Although the assessment of whether there has been an inappropriate degree of influence is a nuanced one, ‘to be undue influence in the eye of the law there must be coercion’.[41]
[40]Smallwood v Smallwood [2008] VSC 74.
[41]Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558.
The particulars relied upon contain a narrative about the testator’s alleged statements in 2015 which are not proximate to nor referable to the circumstances surrounding the execution of the Will. These particulars do not provide any basis to assert undue influence on the part of either Stella or Anastasios. The assertions do not raise a reasonable suspicion that the testator was coerced in any way.
Further, to the extent that the caveator’s assertions about undue influence are, in truth complaints, about the testator’s understanding and knowledge when signing the Will, I have considered these matters as well.
The party impeaching a will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator. If this is not discharged the Court is bound to pronounce against the instrument.[42]
[42]Re Montalto [2016] VSC 266 at [21] per McMillan J.
The deceased’s Will is valid on its face. The caveator has the evidentiary burden to point to circumstances that raise a suspicion that the testator did not understand the extent of the property of which he disposing. Here the Will, which is not complex, was independently witnessed. The Will provides for an equal distribution between all three siblings. No one involved in the preparation of the Will has taken a disproportionate benefit. There are no circumstances exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator.
It is undoubtedly the case that the caveator feels as though he provided care and love to his late parents, and that it is his perception that he did so beyond that which his siblings provided. It is also clear that the caveator suffers profound grief at the loss of his parents, which he acknowledges has affected him deeply. It is also apparent that the caveator has grievances with his siblings. So much is clear from the extravagant language he uses in his submissions and grounds of objection to describe his perception of the alleged conduct of his siblings. However, the lodgement of a caveat is not the means by which to address these matters.
Turning then to the Caveator’s Submission, I note these suffer from a number of shortcomings.
First, they assert that the Will is illegal. Having considered all of the material put before the Court, I am of the opinion that there is no material from which the Court could conclude that the Will is, in the terms use by the caveator, an ‘illegal will’. The Will appears, on its face, to comply with s 7 of the Wills Act 1997 (Vic) in terms of its formalities and it will ultimately be for the Registrar of Probates to determine whether they admit the Will to probate. However, even if the Will did not go forward (in respect of which I see no basis for this outcome to arise) and the estate was to be distributed in intestacy, then substantially the same result will obtain: that is a one third distribution to each sibling.
Second, they assert that the Will disinherits the caveator. This is factually incorrect. The Will provides for equal one third distributions to the caveator and his two siblings.
Third, they proceed on an erroneous belief that a person has a right to see and be involved in the preparation of another person's will, in this case the caveator’s father’s Will. No such legal entitlement exists. A testator is free to choose the person or persons upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make.[43] It is only upon a testator passing that certain categories of people have a right to see the will and any earlier wills or testamentary writings.[44]
[43]Bailey v Bailey[1924] HCA 21; (1924) 34 CLR 558.
[44]Section 50 Wills Act 1997 (Vic).

Fourth, they seek to raise an alleged discussion which the caveator asserts occurred “sometime in 2015” between he and the testator, and which was not the subject of any affidavit by the caveator, to raise suspicion as to the circumstance in which the Will was executed. The alleged conversations in 2015 are not proximate to the making of the Will. Moreover, no action is said to have been taken in respect of them in 2015 or at any time thereafter. I give them little to no weight and otherwise refer to my findings in paragraphs 53 to 56 above.
Fifth, they allege a lack of capacity on behalf of the testator to understand what he was signing in 2006. There is simply no evidence of this. Moreover, the caveator’s submissions are that he took over managing his father’s affairs in 2014. Prior to that, the evidence before me was that there were at least five shops at Madeley Street, Ocean Grove, Victoria that were managed as rental properties. In that context, the caveator contends that one of the things he undertook was to create a nest egg for his father so that he would be accommodated in the case of a medical crisis or infirmity. Put another way, there is no suggestion by the caveator that his father lacked capacity prior to 2014 to manage his own affairs, including an investment property portfolio or was medically infirm. In those circumstances, it is doubtful that suspicion could sensibly arise that the testator did not understand what he was signing when he executed the Will.
To the extent that the caveator raises broader complaints, as was identified by senior counsel for the plaintiff, he has remedies which lie elsewhere. Disrupting the administration of the estate by lodging a caveat in the circumstances he has, is not the way to address those complaints.
Having considered both the grounds of objection and Caveator’s Submission, there is nothing raised in either that arouses the suspicion of the Court.
In Gardiner v Hughes [No 2],[45] the Court of Appeal observed that the Court should act to prevent frivolous or vexatious proceedings and require parties to show some ground for making the application, to ensure that there is a case for investigation and to provide a substantial safeguard against attempts to revoke probate before an application proceeds to trial. Such a process is consistent with case management principles and the overarching obligations in the CPA to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Those observations are equally applicable in the present matter. In administering its probate jurisdiction, the Court must seek to give effect to that purpose.
[45][2019] VSCA 198, [41].

H Conclusion

There is no material before the Court which would operate to justify an “otherwise order” pursuant to Rule 8.03(3)(b) of the Chapter III Rules and the Court declines to make such an Order.
The application by summons was necessary because the office of the Registrar of Probates was not prepared to resolve the issue arising under r 8.03 of the Chapter III Rules and required the Application to be issued.
The caveator did not withdraw the caveat necessitating that the plaintiff to issue the Application and have the matter determined. It is appropriate in those circumstances that the plaintiff’s costs of and incidental to the Application be paid or retained out of the estate on a trustee basis.
The Court will order that:
(a)Pursuant to Rule 8.03(2) of the Supreme Court (Administration and Probate) Rules 2014 (Vic), the caveat filed by the caveator on 26 May 2023 has expired;
(b)the application for a grant of probate of the Will be referred back to the Registrar of Probates for determination; and
(c)the plaintiff’s costs of and incidental to the Application be paid or retained out of the estate on a trustee basis.

[2023] VSC 796

22 December 2023