Cekan v Magiera

The appeal concerned a dispute between the appellant, Mr Cekan, and the respondents regarding the revocation of a grant of probate. The primary judge had refused to revoke the grant of probate in solemn form of the 2016 will. The appeal was heard by President Livesey, Justice Doyle, and Justice Bleby.

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.