Cekan v Magiera - [2023] SASCA 124

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
CEKAN v MAGIERA & ANOR
[2023] SASCA 124
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
23 November 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS - CIRCUMSTANCES
The deceased died in June 2021, leaving a will dated 28 September 2016 (‘2016 will’) with the respondents being the executors. A grant of probate in solemn form of the 2016 will was made on 29 July 2022.
The appellant applied for revocation of the grant of probate of the 2016 will on the ground that the deceased made a subsequent valid will dated 20 April 2018 (‘2018 will’). The appellant is the sole executor under the terms of the 2018 will. The respondents disputed the validity of the 2018 will, alleging a lack of testamentary capacity on the part of the deceased.
On 20 April 2022, the respondents filed an originating application to pronounce the force and validity of the 2016 will. In accordance with the orders for substituted service made on 26 May 2022, the originating application was served by leaving copies at the appellant’s three residential addresses and emailing a copy to a former solicitor of the appellant’s representing law firm, Minter Ellison, on 31 May 2022.
The Court made orders pronouncing for the force and validity of the 2016 will on 22 July 2022. Probate was granted on 29 July 2022.
On 13 September 2022, the appellant filed an application to revoke the grant of probate. The appellant contended that he did not receive actual notice of the application. He accepted that he may have seen the documents but said that they have been exposed to the elements and rendered illegible.
The primary judge noted that an order for revocation of a grant is a discretionary judgment and a grant in solemn form may be set aside if an interested party was prevented from participating in a hearing that culminated in the making of a grant. The judge distinguished between the act of service and the fact of receipt. He found that the respondents had proved delivery by way of substituted service of the originating application. By giving such notice, the appellant was given opportunity to be heard, despite absence of personal receipt of that notice by the appellant. The judge also held that even if the appellant was not given the opportunity to be heard, the order granting probate in solemn form of the 2016 will should not be revoked.
The primary judge ordered the appellant to pay the respondents’ costs of and incidental to the revocation application on an indemnity basis for the reasons that (i) the respondents were not unreasonable to have ventilated the factual issue of the appellant’s actual knowledge; (ii) the respondents were acting to protect the estate; and (iii) the estate should not be depleted as a result of the revocation application except to the extent that the indemnity costs of the respondents cannot be recovered from the appellant.
Broadly, the complaints made by the appellant on appeal were that the judge erred (i) in finding that the appellant had an opportunity to be heard on the originating application; (ii) in the exercise of the discretion by taking into account irrelevant considerations and failing to take into account relevant considerations; and (iii) in finding that there were reasonable grounds for an indemnity costs order.
Held (by the Court), allowing the appeal, ordering that the grant of probate in solemn form of the 2016 will be revoked and setting aside the orders dated 6 March 2023 and 31 March 2023:
1.The primary judge did not err in finding that the appellant had an opportunity to be heard in respect of the originating application.

2. The primary judge did not treat substituted service as decisive in the exercise of the discretion.
3.The judge did not fail to take into account the failings of the appellant’s solicitor when it came to the exercise of the discretion.
4.The judge erred when exercising the discretion in not addressing expressly the arguments for and against, and evidence relevant to, the validity of the 2018 will.
5.On the re-exercise of the discretion, the appellant has demonstrated that there are special circumstances within the meaning of r 51(4) of the Supreme Court Probate Rules 2015 (SA) such that the substantial justice of the case warrants ordering that the grant of probate in solemn form of the 2016 will be revoked.

Acts Interpretation Act 1954 (Qld) s 39(1); Administration and Probate Act 1919 (SA) ss 5, 21, 27, 28; Electronic Communications Act 2000 (SA) s 13A(1)(a); Legislation Interpretation Act 2021 (SA) s 51; Supreme Court Probate Rules 2015 (SA) rr 51, 52(11)(c), 59, referred to.
House v The King (1936) 55 CLR 499; Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786; Re Izett [1982] 2 NZLR 425; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; In re Barraclough, decd [1965] 3 WLR 1023; Magiera & Anor v Cekan [2023] SASC 20; Re Kuhl. Kuhl & Anor v Liebcheschel [1933] SASR 394; Mortimer v David; Estate of Dawn Audrey Day (Deceased) [2005] NSWSC 116; Ratcliffe v Barnes (1862) 2 Sw. & Tr. 486; Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040; Re Levy (Deceased) [1953] VLR 652, considered.

CEKAN v MAGIERA & ANOR
[2023] SASCA 124
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA

THE COURT: On 6 March 2023, a single judge of this Court refused an application to revoke a grant of probate in solemn form of a will dated 28 September 2016 (‘the 2016 will’).[1] This appeal against that decision complains that the judge made several errors in refusing the application.
[1] Magiera & Anor v Cekan [2023] SASC 20.
Broadly speaking, the first issue raised on appeal concerns whether the appellant was given an adequate opportunity to participate in the hearing of the originating application for the grant of probate. To this end, the appellant complained that the primary judge erroneously treated effective substituted service as being decisive of whether the appellant had that opportunity. He also complained that the judge, in exercising the discretion not to set aside the grant, took into account irrelevant considerations, failed to take into account relevant considerations or, alternatively, failed to give adequate reasons. He also complained that the judge erred in making a finding of fact.
The appellant also seeks leave to appeal against an order that he pay the respondents’ costs of his application on an indemnity basis.
The 2016 and 2018 wills
The testator, Michael Kowalczyk (‘the deceased’), died on 30 June 2021, aged 93 years. He had been diagnosed in September 2018 with dementia. A grant of probate of the 2016 will was made on 29 July 2022. The 2016 will appoints the respondents, Jonasz Magiera and Marek Ratajczak, as the deceased’s executors. It directs the respondents to hold his estate on trust in two equal parts for the Polish Christian Church Incorporated (an interested party in this appeal), and the Voice of the Martyrs Australia Ltd. The respondents are senior members of the Polish Christian Church. The estate comprises the former residence of the deceased, as well as two bank accounts. The value of the total assets of the estate is estimated to be less than $600,000.
The appellant migrated to Australia about 20 years ago and settled in Adelaide with his young family. He was about 35 years of age at the time. Soon after his arrival in Adelaide he began attending the Polish Christian Church and met the deceased, who was heavily involved with that church. On the appellant’s evidence, they bonded over their shared Eastern European heritage and became close friends. The appellant had lost his father when he was young and came to regard the deceased as something of a father-figure in his life.
The appellant applied for revocation of the grant of probate of the 2016 will on the ground that the deceased made a subsequent valid will, dated 20 April 2018 (‘the 2018 will’). The appellant is the sole executor under the terms of the 2018 will. The 2018 will instructs that $25,000 be bequeathed to each of the Polish Christian Church Incorporated and the Voice of the Martyrs Australia Ltd, and that the appellant be the sole residual beneficiary of the estate.
The respondents allege that the 2018 will is not valid, because the deceased lacked testamentary capacity at the time that it was made. On about 11 August 2021, they lodged a caveat that had the effect of preventing a grant of probate in respect of the 2018 will. They renewed the caveat on 13 January 2022. The caveat was due to expire on 13 July 2022.
During late 2021 and early 2022, the solicitors for the parties corresponded in relation to the dispute over the deceased’s wills and the appellant’s requests for documents. The appellant’s solicitors were Minter Ellison. That firm’s initial correspondence was in the name of Jason Leonardis (but with James Kearney noted as the file partner). The correspondence culminated in a letter from Mr Kearney dated 23 December 2021. The respondents’ solicitors responded by letter dated 17 January 2022 in which they said they would take instructions and revert to Minter Ellison as to the information sought. As events transpired, that foreshadowed response never came.
The originating application for a grant of probate and service on the appellant
On 20 April 2022, the respondents filed an originating application to pronounce the force and validity of the 2016 will. At that time, the appellant was residing at the deceased’s former address. Between 1 May and 10 May 2022, the respondents’ solicitor made four attempts to effect personal service of the originating application on the appellant at that address. None of those attempts was successful.
On 18 May 2022, a process server retained by the respondents’ solicitor attended at the deceased’s former address. The process server was advised that the appellant was in Queensland, and that his usual residence was in fact at an address in Tea Tree Gully. On 26 May 2022, the Court made orders for substituted service on the appellant.
On 31 May 2022, a process server left copies of the originating application at three residential addresses, including the deceased’s former address, in accordance with the orders for substituted service. On the same day, the respondents’ solicitor emailed the application to a solicitor, Mr Leonardis of Minter Ellison. This was also done pursuant to the orders for substituted service. Minter Ellison had been acting for the appellant in respect of the dispute over the two wills.
However, Mr Leonardis had ceased employment with Minter Ellison on 17 December 2021. His emails were monitored by an executive assistant at the firm until 15 April 2022, when that person also ceased employment with Minter Ellison. As the primary judge found, Minter Ellison then inexplicably failed to monitor Mr Leonardis’s email address until it was deactivated on 4 July 2022.
On 13 July 2022, Minter Ellison made inquiries of the Higher Courts Civil Registry in order to determine whether the caveat preventing a grant of probate of the 2018 will had lapsed. On 15 July 2022, the Registry provided Minter Ellison with information to the effect that the respondents had initiated proceedings against the appellant. On 20 July 2022, Minter Ellison requested a copy of the court record for those proceedings. They received a copy of that record on Friday, 22 July 2022 at 3:51pm. It was at this point that Minter Ellison became aware of the nature of the proceedings, that is, that the respondents were seeking to propound the 2016 will. That record states the date and time of its issue as 22 July 2022 at 3:33pm. It contains the following remarks by the Auxiliary Master in respect of a directions hearing held that day and which had been scheduled for 10:20am:
This is a probate action seeking an order for a document dated 28 September 2016 to be admitted in solemn form. The original will has been provided to me and I will consider the evidence filed in support in chambers. Counsel for the applicant has explained that extensive attempts have been made to correspond and serve the respondent, who is also the executor and major beneficiary in a later document. However, those attempts have been unsuccessful. I also note that the applicants believe that the later document is held by the respondent and has only been sighted by them. The Court does not hold the original later document.
The record did not include the order sought on the originating application. It may be inferred that the order had not been made by 3:33pm. Nevertheless, the subsequent Court records show that the Auxiliary Master did make an order pronouncing for the force and validity of the 2016 will on that date. The record of that order was entered on Monday, 25 July 2022.
The Auxiliary Master’s introductory remarks to the order pronouncing for the force and validity of the 2016 will on 22 July 2022 include the following:
The Penultimate [2016] will has been provided to the Court, but it is believed that the Last [2018] Will remains in the possession of the Respondent. The Respondent has been served with the Proceedings but has not entered an appearance, nor filed a notice of acting. Furthermore, there is no evidence before this Court to contradict the evidence filed by the Applicant. Accordingly, I am satisfied that based on the evidence that has been filed in the Proceedings, the Penultimate [2016] Will should be admitted to proof.
The order having been made on Friday 22 July and then entered on Monday 25 July, the respondents applied for the grant on Tuesday 26 July. On 29 July, the Court made an order granting probate in solemn form of the 2016 will to the respondents.
The appellant filed an application to revoke the grant of probate on 13 September 2022. Mr James Kearney, the partner of Minter Ellison who had responsibility for the day-to-day conduct of the proceeding on behalf of the appellant, made an affidavit in support of the application. This affidavit disclosed that, on 3 August 2022, Mr Kearney wrote to the solicitor for the respondents, Minter Ellison having received the copy of the Court record on 22 July 2022. He requested copies of all documentation and raised various concerns about the processes by which an order for substituted service had been obtained. Mr Kearney’s affidavit does not say what, if anything, occurred between receipt of the Court record on 22 July 2022 and 3 August 2022.
The appellant’s application to revoke the grant of probate
On the application to revoke the grant of probate, the appellant adduced a considerable amount of evidence in support of his contention that he did not receive actual notice of the application. This included evidence to the effect that he had been in Queensland between late April 2022 and 9 May 2022, and overseas between 11 May 2022 and 5 October 2022. He accepted that he may have seen documents left at the deceased’s former address but said that they had been exposed to the elements and rendered illegible.
While the primary judge expressed some reservations about the appellant’s evidence, he concluded that there was little sense in the appellant deliberately trying to avoid service. He accepted the appellant’s evidence to the effect that the appellant did not receive actual notice of the originating application, in the sense of a notice that was legible and therefore intelligible for the purpose of notice.
The question for the primary judge was therefore whether the Court should revoke the grant of probate on the ground that the appellant did not have actual notice of the application.
The judge examined the applicable principles. It will be necessary to return to these principles in context. In brief, his Honour noted that an order for a revocation of a grant is a discretionary judgment and that a grant in solemn form may be set aside if an interested party was prevented from participating in a hearing that culminated in the making of a grant.[2] His Honour held that the critical factor was service of notice of the proceedings on all interested persons.[3] However, the various cases to which his Honour had regard, as his Honour noted, were concerned with whether notice had been given at all,[4] not whether notice had been effected by an order for substituted service, but the person nonetheless did not have knowledge of the fact of the application having been brought.
[2] [2023] SASC 20 at [26]; [33], citing Mortimer v David; Estate of Dawn Audrey Day (Deceased) [2005] NSWSC 116 at [28].
[3] [2023] SASC 20 at [26]; [31]; [34]; citing further, Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [258]; [296] (Lindsay J).
[4] See further, Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 at [24] (Young AJ).
The judge noted the distinction between the act of service amounting to delivery and the fact of receipt. He referred to Fancourt v Mercantile Credits Ltd (‘Fancourt’),[5] which concerned s 39(1) of the Acts Interpretation Act 1954 (Qld), the equivalent South Australian provision of which is s 51 of the Legislation Interpretation Act 2021 (SA). Fancourt is authority for the proposition that proof of non-receipt does not displace a conclusion that delivery is deemed to have been effected if it is done in accordance with the section. Section 51 of the Legislation Interpretation Act 2021 provides:
[5] (1983) 154 CLR 87 at 96-97.
51—Service of documents
(1)This section applies if an Act or a legislative instrument requires or permits a document to be served on a person (whether the expression “serve”, “give”, “provide”, “deliver” or “send” or any other expression is used).
(2)The document may be served on an individual by—
(a)     delivering it to the individual personally; or
(b)     leaving it at, or posting it to—
(i)the physical address designated by the individual for the service of documents of that kind; or
(ii)if such an address is not so designated, the place of residence or a place of business of the individual last known to the server; or
(c)     sending it electronically to the individual in a manner designated, or agreed to, by the individual for the service of documents of that kind.
(3)The document may be served on a body corporate by—
(a)     leaving it at, or posting it to—
(i)the registered office of the body corporate; or
(ii)another physical address designated by the body corporate for the service of documents of that kind; or
(iii)if such an address is not so designated, a place of business of the body corporate last known to the server; or
(b)     sending it electronically to the body corporate in a manner designated, or agreed to, by the body corporate for the service of documents of that kind.
(4)A document is posted to an address by properly addressing, prepaying and posting the document as a letter.
(5)Unless the contrary is proved, service of a document by posting it to an individual or a body corporate is taken to be effected at the time at which the document would be delivered in the ordinary course of post for the postal service used.
Note—
The time and place of service of a document sent electronically is to be determined in accordance with the Electronic Communications Act 2000.

As the primary judge noted, s 51 applies to the Supreme Court Probate Rules 2015 (SA) (‘Probate Rules’), which are a legislative instrument for the purposes of s 51(1). Rule 59 of the Probate Rules requires the provision of an address for service, being a place where proceedings, notices and other documents may be left for a party.[6]
[6] [2023] SASC 20 at [41].
The judge found that the respondents had proved delivery by way of substituted service of the originating application.[7] His Honour then characterised the question as being whether the giving of notice, absent receipt of that notice personally by the appellant, afforded him an opportunity to be heard.
[7] [2023] SASC 20 at [43].
The judge held that the appellant was given that opportunity. This conclusion relied first on the receipt by Minter Ellison of the email sent to Mr Leonardis’s email address. The judge reasoned that Minter Ellison was the appellant’s agent in relation to the dispute over which of the two wills should be admitted to probate. The firm was deemed, by s 13A(1)(a) of the Electronic Communications Act 2000 (SA) (‘ECA’), to have received the email from the respondents’ solicitors of 31 May 2022 when it became capable of being retrieved from Mr Leonardis’s office email address by a partner or an employee. That sufficed to afford the appellant an opportunity to be heard on the application even when he was not aware of the application.[8]
[8] [2023] SASC 20 at [45].
The judge then held:[9]
Moreover, by 15 July 2022 the [appellant’s] solicitors became aware that the application for a grant of probate in solemn form of the 2016 will had been made by the [respondents]. The order proving the 2016 will was not made until 22 July 2022 and the grant of probate was not made until 29 July 2022. Accordingly, there was sufficient time for the [appellant’s] solicitors to have appeared on either 22 or 29 July 2022 so as to enable the [appellant] to be heard.
[9] [2023] SASC 20 at [49].
The appellant took issue with this conclusion on the appeal. However, the judge also held that even if the appellant was not afforded the opportunity to be heard, in the circumstances of the case, the order granting probate in solemn form should not be revoked.[10]
[10] [2023] SASC 20 at [50].
The discretion to revoke a grant of probate in solemn form
Section 5 of the Administration and Probate Act 1919 (SA) vests in the Supreme Court:
[t]he like voluntary and contentious jurisdiction and authority as immediately before the coming into operation of this Act [that] belonged to or were vested in the Supreme Court, in relation to granting or revoking probate of wills and letter of administration…
Section 21 then provides:
The practice of the Court in its testamentary causes jurisdiction shall, except where otherwise provided by the rules, be according to the practice of the Supreme Court immediately before the coming into operation of this Act.
Sections 27 and 28 then establish the obligation to cite persons having, or ‘pretending’ interest in real estate affected by the will that is sought to be admitted to probate in solemn form, or where a grant of probate is sought to be revoked on the ground of invalidity of the will. In the 1933 case of Re Kuhl. Kuhl & Anor v Liebcheschel (‘Re Kuhl’),[11] Napier J referred to the practice of citing a person in such circumstances, which did not make the person cited a party but gave them the opportunity of appearing and taking part in the proceedings.[12] He continued:
There is no difficulty in appreciating the principle upon which the practice of the Court is founded. The grant of probate is a judicial act. It is in the nature of a judgment in rem, i.e., while unrepealed it is conclusive against all the world. See Allen v. Dundas, (1789) 3 Term. Rep. 125. On the other hand, the decree is subject to review at the suit of any person who can shew, firstly, that he was ignorant of the proceedings; secondly, due diligence; and thirdly, that justice requires the proceedings to be reopened (In re Robinson, (1821) 3 Phill. Ecc. 511). The fact that a citation has been issued is almost immaterial for this purpose. The relevant considerations are (1) knowledge of the proceedings, and (2) opportunity to intervene. It follows that if the applicant has not been cited he is nevertheless bound by the result of the previous proceedings if – being entitled to intervene – he had knowledge of them and stood by (Newell v. Weeks, (1814) 2 Phill. Ec. 224). … And conversely, a citation is ineffective unless it comes to the knowledge of the party cited. “A personal service may conclude both the party and the Court; but a service viis et modis” i.e. by all ways and means likely to affect the party with the knowledge of its contents – “is a constructive service, and concludes the party, but does not conclude the Court. The Court on good and sufficient grounds may open proceedings to get at the substantial justice of the case” (per Sir John Nicholl in In re Robinson (supra), at p. 512).
(Citations in original)
[11] [1933] SASR 394.
[12] Re Kuhl. Kuhl & Anor v Liebcheschel [1933] SASR 394 at 398.
Service viis et modis is an ecclesiastical law term, meaning ‘by all ways and means’. It is the equivalent concept to that of substituted service. The relevant effect of Napier J’s observation for present purposes is that notwithstanding that substituted service may have been effected, the Court nonetheless has a discretion to entertain an application to revoke a grant of probate in solemn form ‘to get at the substantial justice of the case’.
Rule 51 of the Probate Rules is concerned with the amendment and revocation of grants of probate. Rule 51(4) expresses the discretion of the Court to revoke a grant:
(4) Except in special circumstances, no grant will be revoked or amended under this rule unless it is on the application of or by the consent of the person to whom the grant was made.
Broadly speaking, whether there are ‘special circumstances’ directs attention to the relevant considerations that Napier J brought in Re Kuhl to the question of whether there were ‘good and sufficient grounds [to] open proceedings to get at the substantial justice of the case’. The question directs attention to whether there is sufficient to overcome the considerations given protection by the principle of finality. Again, at the broadly descriptive level, but as developed below, this directs attention to the respondent’s knowledge of the proceedings and opportunity to intervene.
In the English case of In re Barraclough, decd (‘Barraclough’),[13] the deceased had made no provision in his will for the daughter of his first wife, as he believed she was not his natural daughter. The deceased’s last wife propounded the will in solemn form. The daughter contested the validity of the will on the ground of incapacity. However, the daughter’s legal aid certificate was withdrawn before the action was heard. The daughter’s solicitors wrote to the wife’s solicitors, confirming that they were instructed to withdraw from the proceedings and that the wife would not seek an order for costs against the daughter.
[13] [1965] 3 WLR 1023.
The daughter was not present at the hearing. The Court made an order pronouncing for the will in solemn form. Probate was granted shortly after that. Subsequently, the daughter was granted legal aid again. She applied to have the grant of probate revoked. She alleged she had not participated in the hearing as she was not supported by legal aid and was afraid that the wife would obtain an order for costs against her. In those circumstances, she argued that there had been a miscarriage of justice.
The relevant Rule of Court, RSC Ord 36, r 33, provided:[14]
Any verdict or judgment obtained where one party does not appear at trial may be set aside by the court or judge upon such terms as may seem fit, upon an application made within six days after the trial …
[14] In re Barraclough, decd [1965] 3 WLR 1023 at 1026.
Payne J referred to and accepted[15] a statement by Sir Cresswell Cresswell in Ratcliffe v Barnes:[16]
The general principle, as I collect it, is this, that where a party has had full notice, and has had the opportunity of availing himself of the contest, he will be bound by the decision …
[15] In re Barraclough, decd [1965] 3 WLR 1023 at 1030.
[16] (1862) 2 Sw. & Tr. 486 at 487.
Payne J then continued:[17]
The fundamental principle therefore is that a party should be bound by a decision if he has had an opportunity to appear and oppose the proceedings. But if by some unavoidable accident – the kind of thing for which RSC Ord 36, r 33, provides – a defendant has been prevented from coming to the court and opposing the proceedings, it does seem to me that the court would in the interests of justice (and under RSC Ord 36, r 33) put the matter right. It would lead to a grave injustice if a decision – such as the decision which I gave in this case at the first hearing – could not be put right although by mistake or by accident it had been given in the absence of somebody who genuinely wished to come to court and oppose it.
[17] In re Barraclough, decd [1965] 3 WLR 1023 at 1030-1031.
In that case, however, Payne J found that the daughter had decided on advice not to come to court. She was not absent by reason of any mistake. She had given instructions, on advice, not to contest the matter further. Having regard to the principle of finality in particular, Payne J was satisfied that this was not a case for setting aside the judgment.[18]
[18] In re Barraclough, decd [1965] 3 WLR 1023 at 1033.
In Re Izett,[19] the New Zealand High Court applied the reasoning in Barraclough to the opposite result. The deceased had married for the fifth time in May 1980. Two months later, he made a will appointing his wife sole executrix and leaving her the residue of his estate. Two months after that he was admitted to a hospital geriatric unit. He then applied for and obtained a protection order in respect of his own estate under the relevant aged and infirm persons protection legislation. The affidavit he made in support of that application expressed regrets for his marriage and said that events had made it clear to him that his wife was simply using him for her own financial ends. He died in February 1981.
[19] [1982] 2 NZLR 425.
The deceased’s son lodged a caveat preventing a grant of probate of the will. The wife then filed an ex parte motion for an order nisi for probate of the will. The Court made an order calling on the son to show cause why probate should not be granted. The son filed an affidavit in opposition to the grant. Following certain procedural steps, the wife commenced an action for probate in solemn form. The writ was served on the son. The son forwarded the writ of summons and statement of claim to his solicitor. The solicitors prepared a warrant to defend and sent it to their Rotorua agents with instructions to file and serve. The agents did not file and serve it.
The action was set down for trial of an undefended cause. Meanwhile, the wife’s solicitor approached the son’s solicitor to inquire about prospects of settlement. The son’s solicitor indicated that he felt sure there would be and promised to discuss proposals with his client. He was unaware the matter had been set down. The action was then heard. It was undefended, with no appearance from the son.
The son’s solicitor then followed up with the wife’s solicitor about prospects of settlement. The wife’s solicitor replied, informing him that the wife had obtained a grant in solemn form by default.
Prichard J referred to authority that relied on Barraclough and accepted that the reasoning of Payne J applied.[20] His Honour considered that the question of the extent to which a litigant’s position ought to be prejudiced by the fact that his solicitor ‘has inexcusably slept on his client’s rights’ involved an examination of all circumstances of the case. His Honour’s preparedness to exercise the discretion to set aside the order was informed by the circumstances of the solicitor’s inaction, the wife’s solicitor’s knowledge of the son’s intention to contest and the facts, summarised above, that gave rise to concern about the circumstances of execution of the will:[21]
This is an exceptional case. Sufficient evidence has already been furnished to excite the suspicion of the Court and induce the making or an order for a full investigation under s 61 of the Administration Act: as the result of the defaults on the part of the defendant, which in my view are excusable, there has been no such investigation and the matter has been determined without appearance merely on formal proof, at a hearing in which the plaintiff proceeded by default although fully aware that it was the intention of the defendant to contest her entitlement to probate and propound an earlier will in which she was not named and under which the defendant and his brothers are the principal shareholders; there are reasonable grounds to conclude that if the judgment so obtained is allowed to stand, an injustice may have resulted.
[20] Re Izett [1982] 2 NZLR 425 at 428.
[21] Re Izett [1982] 2 NZLR 425 at 429.
The cases confirm that any person who has been cited, that is, given formal notice of the proceedings, but chooses not to intervene will be bound by a grant in solemn form.[22] A grant of probate in solemn form is a grant in rem. It requires the Court to exercise an independent judgement on an evidentiary foundation.[23] It is not appropriate to characterise it as a default judgment, even if it is not contested. The making of the grant signifies the care that has been taken ‘to minimise the prospect of a later challenge to the title of property dependent on the laws of succession administered by the Court’.[24]
[22] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [258] (Lindsay J).
[23] Re Dowling [2013] NSWSC 1040 at [25].
[24] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [282] (Lindsay J).
The authorities discussed above examine some of the considerations held to be relevant to the question of whether to set aside such a grant; the contemporary expression of the threshold, adopted in Rule 51(4) of the Probate Rules is that there be ‘special circumstances’.[25]
[25] See also Mortimer v David [2005] NSWSC 1166 at [28].
In Estate Kouvakas; Lucas v Konakas (‘Kouvakas’),[26] Lindsay J undertook a helpful and, with respect, thorough, analysis of the authorities as to when a grant in solemn form may be revoked. His Honour observed that a grant in solemn form may be set aside ‘if made in the absence of an interested party prevented from participating in the hearing culminating in the making of the grant’.[27] However, he also acknowledged the diversity of possible circumstances in which a revocation might be ordered. He said:[28]
The decision for the Court is essentially one of case management, governed by the purposive character of probate jurisdiction, directed towards the due and proper administration of the particular estate and accommodation of affected interests: The Estate of Erminia Agnes Rogers; Rogers v Rogers [2009] WASC 358 at [23].
(Citations in original)
[26] [2014] NSWSC 786.
[27] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [260].
[28] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [288].
As to the importance to be placed on the principle of finality in probate proceedings, his Honour observed:[29]
Principles governing the finality of judgments may operate differently in the context of probate proceedings than in ordinary adversarial proceedings. That is because proceedings involving an exercise of probate jurisdiction may involve: (a) public interest considerations, about the due administration about the deceased estate, beyond those attending adversarial proceedings between litigants; and (b) criteria for the determination of the binding effect of a judicial decision that go beyond binding persons joined as parties to the proceedings. Depending on the facts of the case, there may be greater scope in probate proceedings for operation of principles against abuses of process than for an application of principles governing res judicata or issue estoppel.
However, there is no inherent necessity to resort to the jurisdiction of the court to prevent abuses of process upon consideration of an application for a revocation of a grant. The jurisdiction has a negative, preventative character. It may be sufficient for the Court to act upon the positive, purposive nature of the probate jurisdiction, focussed upon the due administration of the particular estate.
[29] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [314]-[315].
We adopt these broadly descriptive observations. His Honour went further, however, and offered a non-prescriptive – and thereby necessarily non‑exhaustive – list of topics ‘upon which the Court might reasonably expect to receive assistance from parties before exposing an estate to expensive, protracted litigation.[30] We set out here the checklist his Honour promulgated, as while not exhaustive, it provides a useful reference point for potential topics that might be expected to arise:[31]
[30] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [320].
[31] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [320].
(a)Whether the grant under challenge is expressed to have been a grant in solemn form.
(b)In summary terms, the size and composition of the estate of the deceased at the time of death, and currently.
(c)Whether any (and, if so, what) part of the estate has been distributed (and, if so, when and to whom).
(d)The nature and foundation of the interest claimed in the estate by each applicant for a revocation order.
(e)The nature and foundation of each competing interest.
(f)The date, and circumstances, of each applicant's first knowledge of:
(i)    the death of the deceased;
(ii)     the application upon which the grant was made; and
(iii)    the grant.
(g)The existence and duration of any delay on the part of an applicant in challenging any will, or grant, under challenge.
(h)Any explanation for such delay.
(i)The evidence relied upon in support of the grant as made.
(j)Any Reasons published by the Court in support of the grant.
(k)The grounds relied upon by each applicant to contend that:
(i)    the grant should be revoked; and
(ii)     any underlying will, or wills, should be held invalid.
(l)The evidence available, or reasonably thought likely to be available, to each applicant in support of a prima facie case of invalidity of a will.
(m)The nature and scope of any inquiries thought to be made by an applicant for the purpose of obtaining evidence in support of his or her application.
(n)Whether there is now pending, or anticipated, a claim for family provision relief made in relation to the deceased.
Cases such as Re Izett and Barraclough illustrate that a solicitor’s failure to attend diligently to their client’s affairs may inform the exercise of the discretion. Lindsay J’s checklist, above, contemplates the relevance of such a failure in items (f) and (h).
That checklist is not, however, a prescription of relevant considerations for all cases. It is a useful list of topics that might be expected to arise. Whether there were special circumstances justifying the revocation of the grant was a matter to be determined in the exercise of the discretion of the primary judge. That, in turn, depended on the matters raised in support of the application to revoke.
This Court’s function on appeal is to determine whether, in exercising the discretion, the primary judge erred in the sense described in House v The King (‘House’).[32] The appellant’s complaints are that in reaching the conclusion that the grant should not be revoked, the judge erred in making a finding of fact, took into account irrelevant considerations, failed to take into account relevant considerations, or alternatively failed to give adequate reasons. Expressed in terms contemplated in House, the complaint is that the judge ‘mistook the facts’, ‘allow[ed] extraneous or irrelevant matters to guide or affect him’ or ‘[did] not take into account some material consideration’.[33]
Whether the judge erred in finding that the appellant had an opportunity to be heard on the originating application
Whether the primary judge erred in finding that there was sufficient time for the appellant’s solicitors to have appeared on either 22 or 29 July 2022
[32] (1936) 55 CLR 499.
[33] House v The King (1936) 55 CLR 499 at 505.

The appellant complained that the primary judge erred in finding, as a matter of fact, that by reason of the information obtained by Minter Ellison on 15 July 2022, ‘there was sufficient time for the respondent’s solicitors to have appeared on either 22 or 29 July 2022 so as to enable the respondent to be heard’.
With respect to the events on Friday 22 July 2022, the appellant submitted that it was not realistic, having received the copy of the court record at 3:31pm, for Minter Ellison to have made an application without instructions from the appellant, who was overseas. The order was then entered on the Monday, 25 July. The only option that the appellant then had was to apply to set aside the order, or to revoke it. The third possibility was to appeal and attempt to lead fresh evidence on the appeal.
The appellant submitted it was erroneous to find that Minter Ellison could have done something in those circumstances. There was no hearing on 29 July when probate was granted. Moreover, Rule 52(11)(c) of the Probate Rules provides:
(11) Unless the Registrar by order made on summons in Form 34 otherwise directs—
…
(c) the commencement of a probate action, whether or not any caveat has been entered, operates to prevent the sealing of a grant (other than a grant of administration pendente lite) until application for a grant is made by the person shown to be entitled by the decision of the Court in such action, and upon such application any caveat entered by a party who has been cited to see proceedings ceases to have effect;
(Emphasis added)
The appellant submitted that the necessary effect of this Rule was that it would be impossible to enter a caveat in respect of the 2016 will, capable of overriding the order of 22 July 2022.
We are prepared to proceed on the basis, without deciding, that at least by 22 July, there were obstacles in the way of entering a caveat in respect of the 2016 will. That does not provide the whole picture, however. Minter Ellison was apprised of the existence of proceedings on Friday 15 July 2022. It did not request a copy of the court record until the following Wednesday, 20 July 2022. There is no explanation for that relatively short, but in the event significant, delay. Further, the appellant’s evidence in his affidavit in support of the application to revoke was that he was not aware of the originating application until his solicitors informed him ‘on or around 22 July 2022 when they became aware of the Probate Action’.[34] He did not expand on how or precisely when he became aware.
[34] Affidavit of Igor Cekan, 6 October 2022, [6].
Having obtained the order on Friday 22 July, which was entered on Monday 25 July, the solicitors for the respondents then applied for a grant of probate on Tuesday 26 July. Once Minter Ellison became aware on 22 July of the likelihood that the order would be made, it was in a position at least to contact the solicitors for the respondents and advise that its client had not previously been aware of the originating application. We do not speculate as to what would have eventuated had it done so. However, it is difficult to see that the Court would not have been notified of the appellant’s position prior to granting probate on 29 July.
The state of the evidence, therefore, was that:
·Minter Ellison was aware of the existence of the proceedings from 15 July 2022 but did not take steps to ascertain the nature and status of those proceedings until 20 July 2022;
·having requested the court record on 20 July 2022, Minter Ellison was apprised of the situation late on 22 July 2022;
·the appellant was not aware of the existence of the originating application until ‘on or about’ 22 July 2022 when he was told by Minter Ellison;
·there is no evidence about what passed between Minter Ellison and the appellant by way of advice and instructions; and
·Minter Ellison did not take any further steps until 3 August 2022.
As to the opportunity to be heard on 22 July before the Auxiliary Master, then, the evidence did not disclose any explanation for the delay from 15 July to 20 July on the part of Minter Ellison in acting to obtain information about the proceedings. Minter Ellison was, clearly enough, in a position to request the Court record on 20 July, which was still before the appellant knew of the proceedings.
Absent any explanation as to why Minter Ellison could not equally have made that request earlier, it cannot be said that the judge erred in finding that the appellant had an opportunity to be heard on 22 July. Having said that, the opportunity was a narrow one. Further, this opportunity existed through the agency of Minter Ellison. The failure to take it was a failure of the solicitors, the appellant being unaware of it. These matters do not undermine the conclusion of fact that the judge reached. However, their relevance to the exercise of the discretion is potentially a different issue, which we consider below.
As to the opportunity to be heard on 29 July, once Minter Ellison had received the Court record, the appellant pointed out that there was not an actual hearing on 29 July, when the order for the grant of probate was made. However, that does not mean that the appellant could not have been heard on or prior to that date, had Minter Ellison taken some steps. At the very least, Minter Ellison could have contacted the solicitors for the respondent and brought their client’s circumstances to the attention of the Court. It did not do so. The appellant did not adduce evidence before the primary judge to explain that failure. We note that the appellant was in Canada throughout this period.
There is a danger in speculating about what would have happened had the appellant contacted the Court after 22 July but before 29 July. The Court had made the order pronouncing for the force and validity of the 2016 will, but probate had not yet been granted. It is difficult to conclude other than that any action prior to 29 July designed to prevent a grant would have needed to address the order of 22 July. For example, the appellant may have had to appeal against the order of 22 July and take steps to have the grant delayed pending appeal.
As the respondents submitted, however, the appellant only sought to revoke the grant of probate that was made on 29 July. They did not seek to appeal against the order of 22 July. It is the case, however, that the amended grounds of appeal to this Court now also seek permission to appeal against the order of 22 July.
The appellant has not addressed why no steps were taken until 3 August. On the state of the evidence, and having regard to the appellant’s onus, it cannot be said that the judge erred in finding that by reason of Minter Ellison being aware of the originating application on 15 July, the appellant had an opportunity to be heard on 22 July or, in effect, prior to the grant of probate on 29 July.
It follows that we reject the appellant’s contention that the primary judge erred in finding, as a matter of fact, that ‘there was sufficient time for the respondent’s solicitors to have appeared on either 22 July or 29 July 2022 so as to enable the respondent to be heard’.
Other aspects of the opportunity to be heard
The broad issue of whether the appellant had an opportunity to be heard incorporates, on the appellant’s arguments, further matters. The appellant complained that the email to Mr Leonardis’s unmonitored email address was incapable of affording the appellant an opportunity.
The judge gave considerable attention to the topic of the email sent to Mr Leonardis’s address. In this regard, he concluded that the effect of s 13 of the ECA ‘suffice[d] to afford the [appellant] the opportunity to be heard on the application even where personally he was unaware of the application’.[35]
[35] [2023] SASC 20 at [45].
This was patently a conclusion about the effect of service. It was a finding made exclusively of the judge’s other conclusion that at that stage, the appellant was not aware of the proceedings because the email address was not monitored. The appellant complained that this service did not give him an opportunity to appear at the proceedings, because the email was unmonitored. However, that fails to acknowledge the limit of the finding. Questions of opportunity and knowledge were both ultimately relevant to the exercise of the discretion. This complaint conflates the two issues.
It follows that we are not persuaded that the judge erred in finding that the appellant had an opportunity to be heard in respect of the originating application. However, when it comes to the question of whether the judge erred in the exercise of the discretion, it is important to bear in mind the limits of the judge’s findings. The findings depended, in the case of the email to Mr Leonardis and then the events from 15 July to 22 July, on the conclusion that notice to Minter Ellison was sufficient to afford the required opportunity.[36] After 22 July, when it appears that the appellant was aware of the originating application, the opportunity was at least restricted in its scope by the fact of the order of 22 July.
[36] [2023] SASC [45]-[48].
The primary judge’s approach to the exercise of the discretion
The judge’s subsequent consideration of the discretion proceeded on the premise that, contrary to his conclusion, the appellant had by reason of these matters not been afforded a ‘fair opportunity’ to be heard.[37]
[37] [2023] SASC 20 at [52].
This approach of asking whether there was an opportunity to be heard and then, if not, how the discretion should be exercised, causes me to hesitate. It may be that this was how the matter was argued before the primary judge. However, accepting the broad statement by Napier J in Re Kuhl that ‘[t]he relevant considerations are (1) knowledge of the proceedings, and (2) opportunity to intervene’, the question of whether the person had an opportunity to intervene might not present a clearly positive or negative answer. While there might technically have been an opportunity in a given case, other factors, such as the conduct of the person’s solicitor (compare Re Izett) or there only having been a narrow window of time, might have compromised or qualified that opportunity. It might then follow that on an assessment of all the relevant factors, the discretion to revoke should nonetheless be exercised.
In this case, the judge proceeded to consider the discretion on the alternative basis that there had not been a fair opportunity to be heard at all. The appellant’s complaints about the exercise of the discretion must be considered in that context, bearing in mind that the primary finding was that the appellant did have that opportunity.
The judge noted that a grant will only be revoked where proper cause exists, given the principles governing the finality of judgments.[38] He recognised that whether the power to revoke should be exercised in a particular case is a decision in the discretion of the Court, having regard to all the circumstances of the case.[39] He considered that the application of principles governing finality arises most obviously when the grant is made in solemn form, as the Court can reasonably be taken to have investigated questions about the parties, evidence and the due administration of justice before making the grant. Nevertheless, his Honour also accepted that those principles may operate differently in the context of probate proceedings, which may involve considerations of the public interest in the due administration of justice. Further, a grant of probate in solemn form may bind persons not joined as parties to the application.[40]
[38] [2023] SASC 20 at [51].
[39] [2023] SASC 20 at [51].
[40] [2023] SASC 20 at [51].
Having regard to those principles, the judge reasoned and concluded as follows:[41]
In this case, while the Court made the order granting probate in solemn form of the 2016 will ex parte, it did so after investigating whether all parties with an interest in the outcome of the application for the grant had been notified. It only made the order after being satisfied that was the case. The grant was regularly made. This is an estate of fairly modest size. Considerable work has already been undertaken to obtain the grant and to hear the application for revocation. Granting the application for revocation will, almost certainly, be followed by an application to prove the 2018 will. This will have the inevitable effect of further eroding the value of the estate. For the reasons set out above, I am satisfied that the Court was correct in making the order granting probate on the basis that the respondent had been given notice of the application. In this case, the principles concerning the finality of judgments dictate the exercise of the Court’s discretion to refuse the application for revocation even if, contrary to what I have found, the respondent was not afforded a fair opportunity to be heard on the application. A grant in solemn form can be made notwithstanding the absence of any contest,[42] the critical factor being service of notice of the proceedings on all interested persons.[43] In this case that critical factor was satisfied. Refusing the application for revocation is in the best interests of the due and proper administration of the estate.
On this basis, the judge refused the application for revocation.
Whether the judge treated as decisive the fact of service on the appellant in accordance with the orders for substituted service.
[41] [2023] SASC 20 at [52].
[42] Re Levy (Deceased) [1953] VLR 652.
[43] Mortimer v David; Estate of Dawn Audrey Day (Deceased) [2005] NSWSC 1116 [28]; Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [296].
The appellant’s first complaint with respect to the exercise of the discretion was that the judge proceeded on the basis that substituted service was decisive of whether the appellant had been given an adequate opportunity to participate in the hearing.
In the passage extracted immediately above, the judge described service of notice of the proceedings on all interested persons as a ‘critical’ factor in the decision to make a grant of probate in solemn form. It is necessary to read that description in context. The first part of the passage indicates that his Honour considered several factors to be relevant to the exercise of the discretion. His Honour then expressed a conclusion, manifestly having regard to those factors, that principles concerning the finality of judgments were, in this case, the governing factor in refusing to exercise the discretion to revoke.
It was in this context that the judge said that service of notice of the proceedings on all interested persons was the ‘critical factor’ in whether to make a grant in solemn form. His Honour had already identified the factors that governed his exercise of the discretion not to revoke the grant, even if fair notice had not been afforded. This remark, which cited the judgment of Lindsay J in Kouvakas,[44] was directed to whether a grant could be made, not to whether the discretion should be exercised to revoke it.
[44] [2014] NSWSC 786 at [296].
We read his Honour’s reasons as saying nothing more than that as long as all interested persons had been served with notice of the proceedings, there was no absolute barrier to proceeding with a grant in solemn form. Thus, as long as service had been effected, the absence of a fair opportunity to be heard did not prevent his conclusion, based on the discretionary factors he had already identified, that ‘[r]efusing the application for revocation [was] in the best interests of the due and proper administration of the estate’.
We therefore dismiss the ground complaining that the judge treated substituted service as decisive in the exercise of the discretion to revoke.
Relevant and irrelevant considerations and adequacy of reasons
The appellant’s first complaint about the matters the primary judge took into account in the exercise of the discretion concerned his Honour’s observation that to grant the application for revocation would lead to further applications (specifically, to prove the 2018 will). His Honour observed that this would have the inevitable effect of further eroding the value of the estate. The appellant submitted that a number of factors meant that this consideration should be given little weight. There was a subsequent will and an application to prove that will in solemn form, which raised a ‘relatively discrete point’ (the capacity of the deceased to execute the 2018 will). The appellant also pointed to ‘the nature of the competing interests’. By this last consideration, we understood the appellant to mean that the competition was between a natural person (himself) on the one hand, and a charitable organisation on the other.
This is simply a complaint of weight. The judge’s reasons identify that he took into account the risk of the erosion of the estate by reason of the likely ensuing litigation. This was a relevant consideration. Its weight was a matter for the judge. This complaint is incapable of establishing error.
Perhaps more fundamentally, the appellant also complained that there were several matters that the judge did not take into account, or which the reasons do not adequately disclose that he did take into account. Chief among these was the detail of the circumstances in which Minter Ellison received notice of the proceedings and failed to act in a timely way on that notice. This extended to the failure of Minter Ellison to notice the email of service to Mr Leonardis’s email address and the events from 15 July 2022, following Minter Ellison’s inquiry of 13 July 2022.
Having regard to the authorities discussed above, it was necessary when considering the exercise of the discretion to evaluate the nature and limit of the opportunity that the appellant had to be heard. Specifically, it was necessary to take into account the extent to which the appellant’s failure to take advantage of any formal opportunity was compromised by the inaction of his solicitors in bringing the matter to his attention. His Honour chronicled the solicitors’ missteps carefully. Those matters featured in his conclusion that the appellant nonetheless had an opportunity to be heard.
The judge’s exercise of the discretion was then premised on the alternative position that he was wrong about that. However, for the reasons we have attempted to express above, we respectfully think that proceeding in this way ran a risk of obscuring the detail of the inquiry. To posit (in the alternative) that the appellant had not had an opportunity to be heard did not engage with the detail of that posited lack of opportunity, nor with the practical effect that the solicitor’s failures had on the appellant’s knowledge, notwithstanding the technical existence of the opportunity. In our respectful view, the analysis for the purposes of the discretion should have considered the extent to which the appellant was beholden to his solicitor’s failings.
By way of example, it was relevant to consider whether the events in the period from 15 July 2022 until 20 July 2022 should not have been counted against the appellant on the question of whether he had an opportunity to be heard on 22 July. Minter Ellison actually knew of the existence of the proceedings but did not act during that period. The subsequent events between 22 and 29 July were of a different character, both because the order propounding the 2016 will had been made and because the appellant had become aware of the proceedings ‘on or about’ 22 July. With respect to that last matter, the appellant’s evidence was cursory at best. Further, the appellant gave no explanation for the failure of his solicitors to then act until 3 August.
These matters were all relevant to the exercise of the discretion. However, the failure to mention them is not the end of the matter. The judge’s consideration of the discretion proceeded on the hypothesised basis that the appellant had not had a fair opportunity, contrary to his primary conclusion. That would seem to incorporate all the mischiefs associated with Minter Ellison’s failure to notice or act on the email to Mr Leonardis, the information the firm received on 15 July, and so on. That is, the judge approached the discretion on the hypothesised basis that the appellant was so disadvantaged by the firm’s failures that he was left with no opportunity to be heard. The judge nonetheless would have exercised the discretion against revoking the grant.

In that circumstance, and reading the reasons as a whole, which included a close analysis of the involvement of Minter Ellison, it cannot be said that the judge failed to take into account, in a broad sense, Minter Ellison’s failings when it came to the exercise of the discretion.
The other, primary matter that the appellant submitted the judge did not take into account was evidence that the deceased had capacity at the time of the 2018 will and that there was corroborative evidence that the deceased did understand English. In order to understand and assess this complaint, it is necessary to review the evidence relevant to the deceased’s capacity.
In support of the originating application to pronounce for the force of the 2016 will, the respondent Mr Magiera made an affidavit that went into some detail about concerns with respect to the deceased’s capacity in 2018. In this regard, his affidavit first annexed a letter from Dr Ashley Ng dated 5 October 2016, on which Mr Magiera relied in order to establish the deceased’s capacity at the time he executed the 2016 will. Dr Ng’s letter included the following statements:
1.   I believe Michael is able to make decisions in relation to his legal and/or financial affairs.
2.   I believe Michael has mental capacity to understand legal documents and their consequences.
3.   I believe Michael is able to make decisions independently.
4.   I am not aware of previous medical events in the past that have affected his memory or capacity. He does have some degree of cognitive impairment, but appears to understand the meaning and relevance of advanced care directives and power of attorney. He is awaiting assessment by the community geriatric team to look further into this.
Mr Magiera’s evidence then addressed his understanding of the events surrounding the preparation of the 2018 will. He expressed concern that unlike the 2016 will, the 2018 will did not contain a translation clause, given what he described as ‘the deceased’s poor comprehension of the English language’. Mr Magiera also gave evidence about his reasons for understanding the deceased’s repeatedly expressed intention that half of his estate would be given to the church.
Mr Magiera then addressed the deceased’s capacity in 2018. The affidavit identified that Mr Magiera and a tenant of the deceased became concerned about the deceased’s capacity. A doctor at Trinity Medical Centre referred the deceased to the Older Persons Assessment Unit at the Queen Elizabeth Hospital on 18 July 2018. This was three months after the 2018 will was signed. Dr Shailaja Nair, consultant geriatrician, assessed the deceased on 25 September and 6 November 2018. Dr Nair reported that there was evidence of progressive cognitive decline affecting multiple cognitive domains (short-term memory, visuo‑spatial deficits, apraxias, executive dysfunction, disorientation) ‘over preceding three years significantly affecting function’. This also included a decline in language skills.
Dr Nair was sufficiently concerned with respect to the deceased’s capacity that on 6 November 2018 he undertook a capacity assessment and concluded that the deceased did not have capacity with regard to financial or lifestyle decisions. He wrote a letter to that effect at the time. This assessment occurred some six and a half months after the 2018 will was signed.
In support of the application to revoke the grant of probate, the appellant annexed to his affidavit a letter signed by Dr Ng, dated 22 March 2018, that is, one month before the 2018 will was signed. The operative part of this letter simply said:
I believe that Michael has capacity to make his own decisions and understands the implications of legal documents, e.g., will.
The appellant’s evidence was that the deceased had sought a medical assessment at this time, the appointment ‘having been suggested by the Salvation Army’. This was, on the appellant’s evidence, following the deceased having told him he wished to make a new will. The appellant said he was not familiar with the drafting process of a new will, so he made an appointment for the deceased with the Salvation Army. The Salvation Army referred the deceased to a solicitor, Mr Philip Winter. The appellant, on his evidence, did not attend the meetings with Mr Winter. He drove the deceased to the appointment with Mr Winter on 20 April 2018, when the deceased executed the 2018 will.
Mr Winter died in 2019. His previous firm has no record of the 2018 will.
The appellant’s affidavit also included evidence to the effect that he did not observe any decline in capacity of the deceased prior to executing the 2018 will. He said that the deceased was fluent in English. However, the report of Dr Nair indicated that the deceased required an interpreter.
There was a clear dispute about whether the deceased had capacity and the requisite language skills when he signed the 2018 will. However, the indicators were not, on the face of the evidence, all one way. There is the letter of Dr Ng, although that letter offers no basis on which Dr Ng held the opinion that the deceased had capacity in March 2018. On the other hand, the assessment by Dr Nair occurred over six months after the 2018 will was signed.
It is clear enough that it is relevant to consider, on an application, the grounds relied upon by an applicant to contend that the grant should be revoked and any underlying will, or wills, should be held invalid. The evidence in support of a prima facie case of invalidity of a will is also relevant.[45]
[45] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [320].
The evidence adduced by the applicant in support of the validity of the 2018 will is hardly overwhelming. By the same token, it has probative value. Dr Ng’s admittedly short letter is dated one month before the 2018 will was signed in April. Dr Nair did not see the deceased until September 2018, and then again in November 2018. Having said that, the referral, based on concerns, was made in July. Moreover, an interpreter was present at both of those assessments.
Counsel for the appellant had submitted before the primary judge that there was a prima facie case for the validity of the 2018 will. He did not submit that the evidence went any further than that and accepted that there would need to be further evidence in due course.
In a case such as this, whether there was any merit associated with propounding the 2018 will was an important consideration. The Court could not ‘get at the substantial justice of the case’ without evaluating it.[46]
[46] Re Kuhl. Kuhl & Anor v Liebcheschel [1933] SASR 394 at 398 (Napier J).
In our respectful view, it was necessary to incorporate into the question of the discretion the arguments for and against, and evidence relevant to, the validity of the 2018 will. These matters do not feature in the reasons of the primary judge when determining not to revoke the grant of probate in the exercise of his discretion. Whether that is properly characterised as not having taken into account the prima facie case for validity of the 2018 will or a failure to give reasons in respect of that matter, in our respectful view it was an error not to have addressed it expressly when exercising the discretion.
Re-exercise of the discretion
The above conclusion would then require this Court to consider whether, in its own exercise of the discretion, the grant of probate of the 2016 will should be revoked. This is necessary because, although we concluded that the primary judge did not err in concluding that the appellant had an opportunity to be heard, we also consider that it is necessary, in any event, to consider the nature of that opportunity as a factor in the re-exercise of the discretion. That is to say, the finding of the existence of that opportunity, such as it was, was not sufficient to decide the whole question. For the reasons discussed above, the opportunity was a narrow one. It was, for the most part, dependent on the appellant’s solicitors. At best, the appellant had knowledge of the originating proceedings only for a week before the grant was made, and only after the order was made pronouncing for the force and validity of the 2016 will.
We would therefore not approach the question of the discretion only in the alternative, as if the appellant had not in fact had an opportunity as found by the trial judge. We approach the discretion having regard to the nature and scope of the opportunity that the trial judge found the appellant had.
The starting point is that the respondents effected substituted service on the appellant on 31 May 2022 by leaving copies of the originating application at the various addresses and emailing a copy to Mr Leonardis. The respondents proved delivery.
Next, the appellant said he was in Queensland from late April 2022 until 9 May 2022 and then overseas from 11 May 2022 until 5 October 2022. He also said that ‘sometime after’ he returned home from Queensland on 9 May 2022, he discovered an envelope of documents left underneath the front fence of the property, exposed to the weather and rendered illegible. This is curious phrasing, given that the appellant departed for Canada on 11 May 2022.
Nevertheless, the effect of the findings is that the appellant was not in Adelaide for the period between the effecting of substituted service (31 May 2022) and the grant of probate (29 July 2022). The judge accepted that he had not received actual, legible notice.[47] To the extent that it was submitted that the appellant was aware of the existence of some formal documentation by reason of being aware of the illegible documents, this does not take things very far. Whatever illegible documents the appellant may have seen, these must have been left on account of the service attempts on 1, 2, 3 or 10 May. Those documents were not left on account of the order for substituted service, which was not made until the appellant was in Canada.
[47] [2023] SASC 20 at [22].
The respondents filed an affidavit of Brenton Joraslafsky, who had rented a room from the appellant at the property for a period that included while the appellant was in Canada. Mr Joraslafsky’s evidence was that on around 31 May 2022, a plastic sleeve containing documents and bearing Supreme Court letterhead had been left at the property. He said he called the appellant in early June and advised him of the existence and nature of this paperwork. He said the appellant said that he would have a friend come and collect it.
The appellant disputed this account. He said he did not take any calls on his mobile phone while in Canada, as it was too expensive. He received an SMS message from Mr Joraslafsky on 5 July about the need to call a plumber to the property. He arranged a friend to attend at the property and assist. On that date, the friend also assisted Mr Joraslafsky with creating a WhatsApp account. The appellant then spoke to Mr Joraslafsky on that occasion. Mr Joraslafsky said that there was a lot of mail and some ‘big envelopes’ but did not mention the Supreme Court. The appellant said he instructed Mr Joraslafsky to give the mail to his friend. The appellant’s evidence was that his first WhatsApp communications with Mr Joraslafsky were on 10 July 2022.
The appellant was cross-examined on this evidence. He maintained his account and said:
I was not concerned about nothing because I knew in regarding to what we are dealing with right now here, I had engaged lawyers prior [to] leaving, professional firm …
The judge did not address this evidence. However, as we have already noted, he found, albeit with some misgivings, that the appellant did not have actual notice of the proceedings. This finding necessarily incorporated acceptance that whatever precisely happened between the appellant and Mr Joraslafsky, the appellant was not on notice of the proceedings, even after the WhatsApp conversation.
That being the case, the failure of the appellant to become aware of the originating proceedings between the effecting of substituted service on 31 May 2022 and Minter Ellison becoming aware of the proceedings on 15 July 2022 was due to his being absent from the jurisdiction and the failure of Minter Ellison to monitor and maintain Mr Leonardis’s email address.
The clear effect of the evidence was that both the appellant and respondents considered Minter Ellison to be generally instructed in relation to the dispute. The respondents filed the originating application on 20 April 2022. The application was supported by an affidavit of Mr Magiera. Mr Magiera’s affidavit exhibited correspondence with Mr Leonardis on 15 December 2021. Subsequently, when the respondents sought an order for substituted service, they sought and obtained an order that substituted service be effected by email to Mr Leonardis’s email address, as well as the various residential properties.
The following factors related to actual notice would then appear to be of particular relevance. Between 31 May 2022 and 15 July 2022, the appellant’s lack of actual notice was attributable, on the evidence, to Minter Ellison’s failure to monitor (and maintain) Mr Leonardis’s email account. From 15 July to 22 July, his lack of notice was due to Minter Ellison’s failure to act immediately on the information that the originating proceedings had been filed. From ‘on or about’ 22 July to 29 July, by his own account, the appellant had actual notice. However, nothing was done until 3 August. No steps were taken from Monday 25 July to prevent the grant of probate, such as commencing an appeal against the Auxiliary Master’s order. Having said that, the respondents then made the application for the grant on 26 July. Probate was granted on 29 July. There was only a narrow window for potentially limited redress.
This is not as extreme a case as Re Izett.[48] The respondents’ solicitors were not nearly so clearly apprised of the appellant’s position as were the solicitors in that case. The respondents’ solicitors did no more than see to their clients’ interests appropriately. However, this is also a case where, on the evidence, the appellant’s solicitors ‘slept on’[49] their client’s interests. In considering the matters relevant to the exercise of the discretion, we place considerable weight on the apparent failure of Minter Ellison to act in a timely way. We also place weight on the fact that the nature of the opportunity that was apparently within the appellant’s knowledge from about 22 July was limited in its scope.
[48] [1982] 2 NZLR 425.
[49] Re Izett [1982] 2 NZLR 425 at 428.
We bring other factors to the exercise of the discretion as follows.
As the primary judge found, the estate is not large, having a value of approximately $600,000. The major asset is the deceased’s residence. Further litigation would undoubtedly result in considerable further attrition of the estate. None of the estate has been distributed, however. Moreover, while the size of the estate may not be large when regard is had to the potential cost of ongoing proceedings, its size is understandably significant to the parties.
The nature of the interest in the estate claimed by the appellant is proportionately considerable. But for specific bequests of $25,000 to the Polish Christian Church Albert Park and the charitable organisation ‘Voice of the Martyrs Australia’, the 2018 will leaves the residue to the appellant. By contrast, under the 2016 will, the residue is divided between the two charitable organisations.
The competing interests are grounded in the 2016 will and the 2018 will respectively. There is, on the face of the evidence, a basis for challenging that the deceased had capacity at the time he signed the 2018 will and that absent a translation clause, his English language capacity was not sufficient to understand the document. However, the appellant has also presented a prima facie case, based on the summary opinion of Dr Ng and the appellant’s evidence of the circumstances of procurement of that opinion, that the deceased had capacity in April 2018. It is not possible on this appeal to assess the competing cases about the deceased’s capacity, beyond identifying that the litigants have identified prima facie cases respectively for and against the 2018 will. Patently, were the matter to go to trial, further expert reports and evidence as to the deceased’s English language capacity would be required.
The order pronouncing for the force of the 2016 will was made expressly on the premises that the appellant had been served and that no evidence had been presented in support of the validity of the 2018 will. That is to say, understandably enough, while the Auxiliary Master was aware of the existence of the 2018 will, she did not (and had no basis to) interrogate the competing claims.
The application to revoke the grant of probate was not delayed. The grant having been made on 29 July 2022, the application to revoke the grant was filed on 13 September 2022.
The principle of finality remains an important consideration. The application was made for a grant in solemn form against the background of the history of the appellant having notified the respondents of the existence of the 2018 will and his intention to propound it. The respondents cannot be criticised for the steps that they took.
The matter is finely balanced. We have taken all of the above matters into account. We accept that the appellant had an opportunity to be heard. However, the character of that opportunity was heavily constrained by Minter Ellison’s inaction, such that the appellant did not have actual notice of the proceedings until, at best, 22 July when the order proving the 2016 will was made.
The window that then presented was narrow, with the respondents pressing on for a grant of probate as soon as possible. Again, they are not to be criticised for that. Notwithstanding that there is no explanation for the inaction between 25 and 29 July, that is not a long period. The appellant was in Canada. In our view, the appellant has demonstrated that there are special circumstances within the meaning of r 51(4) of the Probate Rules such that the substantial justice of the case warrants ordering that the grant of probate in solemn form be revoked.
Conclusion
We allow the appeal. We set aside the orders of the primary judge dated 6 March 2023 and order that the grant of probate in solemn form of the 2016 will be revoked. In those circumstances, it is not necessary to grant leave to appeal against the costs orders of 31 March 2023. We set aside those orders in consequence of our conclusions on the primary appeal.