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…
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CaseChat Overview and Summary
The legal issues before the Full Court included whether the primary judge erred in the exercise of his discretion by considering that revoking the grant would lead to further applications and thus erode the estate's value. Additionally, the court considered whether the primary judge adequately took into account, or disclosed that he had taken into account, all relevant factors, particularly the detailed circumstances surrounding the appellant's solicitors' inaction in notifying him of proceedings and the impact of this inaction on the appellant's opportunity to be heard.
The Full Court found that while the risk of estate erosion was a relevant consideration, its weight was a matter for the primary judge. However, the court held that the primary judge's reasoning concerning the appellant's opportunity to be heard was flawed. The judge had chronicled the solicitors' missteps but concluded the appellant still had an opportunity to be heard. The Full Court reasoned that the analysis for the discretion should have more deeply considered the extent to which the appellant was beholden to his solicitor's failings, especially given the narrow window for response and the respondents' pressing for a grant.
The Full Court allowed the appeal, setting aside the primary judge's orders. It ordered that the grant of probate in solemn form of the 2016 will be revoked, finding that special circumstances existed warranting this outcome in the interests of substantial justice. The costs orders made by the primary judge were also set aside as a consequence of the appeal's success.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Legal Principle Established
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.