Estate Kouvakas; Lucas v Konakas
[2014] NSWSC 786
•16 July 2014
Supreme Court
New South Wales
Medium Neutral Citation: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 Hearing dates: 14 and 15 April 2014; 12 May 2014 Decision date: 16 July 2014 Jurisdiction: Equity Division - Probate List Before: Lindsay J Decision: Orders made for summary disposal of an application for an order that a grant of administration with the will attached be revoked
Catchwords: SUCCESSION - Wills, Probate and Administration -Probate and Letters of Administration - Alteration and Revocation of Grants - Application to revoke grant of administration in common form - Plaintiff acquiesced in grant of administration in favour of defendant - Whether in the interests of the due administration of justice and of the estate to revoke grant - Court's power to revoke grant is discretionary - Revocation proceedings an abuse of process - Application summarily dismissed
SUCCESSION -Wills, Probate and Administration - Probate and Letters of Administration - Practice - New South Wales -Form of probate and letters of administration - Distinction between grant in common form and grant in solemn form - Principles governing revocation of grantsLegislation Cited: Australian Courts Act 1828, ss 2, 24
Civil Procedure Act 2005 NSW, ss 56-60, 90
Family Provision Act 1982 NSW
Judicature Acts1873 and 1875 (UK)
Probate Act 1890 NSW
Probate and Administration Act 1898 NSW, ss 150, 41A, 40D, 81, 90, 91
Succession Act 2006 NSW, ss 54, 58, 59, 91
Supreme Court Rules 1970 NSW, Part 78
Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW
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Wills Act 1837 (UK)
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Young, Croft & Smith, On Equity (Law Book Co, Sydney, 2009), paragraph [5.520]Category: Principal judgment Parties: Nicholas Lucas (Plaintiff)
Yvonne Trakimas (Applicant for joinder as a plaintiff)
Diana Konakas (Defendant)Representation: Counsel:
CP Locke (Plaintiff and Applicant for joinder as a plaintiff)
P Lowson (Defendant)
Solicitors:
AE Dunne (Plaintiff and Applicant for joinder as a plaintiff)
Konstan Lawyers (Defendant)
File Number(s): 2013/00322211
Judgment
INDEX
I. INTRODUCTION
II. BACKGROUND FACTS
III THREE SETS OF PROCEEDINGS
1. The Administration Proceedings
2. The Family Provision Proceedings
3. The (Present) Revocation Proceedings
IV PRESENTLY AVAILABLE EVIDENCE ABOUT THE CIRCUMSTANCES IN WHICH THE 2011 WILL WAS EXECUTED
1. The daughter's version of events
2. The stepson's version of events
3. The granddaughter's version of events
4. St George Hospital Clinical Notes
V. PRINCIPLES GOVERNING REVOCATION OF A GRANT OF PROBATE OR ADMINISTRATION
1. Introduction
2. The Source(s) and Nature of Probate Jurisdiction
3. The Cultural Heritage of NSW Probate Practice
4. Cultural Shifts in NSW Probate Practice
5. English Probate Law and Practice as Received in NSW
6. Diversity in Statements of the Law
7. The Central Purpose of Probate Jurisdiction
8. The Distinction between Common and Solemn Form Grants
9. A Grant bears the character of a Court Order
10. A Grant bears the character of a Title Document
11. The Nature of a Revocation Order
12. The Character and Purpose of a Solemn Form Grant
12.1 The Question of Parties
12.2 The Question of Evidence
12.3 The Court's judgement call
13. Investigation of Title and Building an Estoppel : Due Administration of Estates, Testamentary Intentions and Title to Property
14. Grounds for a Revocation Order
15. A Checklist of Topics for Consideration
VI. APPLICATION OF PRINCIPLES TO FACTS
VII. CONCLUSION
INTRODUCTION
By a statement of claim filed in these proceedings (numbered 2013/00322211) on 25 October 2013 the plaintiff (the stepson of the deceased person whose estate lies at the heart of the proceedings) applies, in essence, for:
(a) an order that letters of administration, with a will dated 6 August 2011 annexed, granted to the defendant (the daughter of the deceased) on 14 May 2013 (in proceedings numbered 2012/00173956) be revoked; and
(b) an order that administration, with a will of the deceased dated 10 November 1993 annexed, be granted to the plaintiff in solemn form.
By a notice of motion filed on 21 February 2014 (in these proceedings, numbered 2013/00322211) the defendant applies for an order (pursuant to the Uniform Civil Procedure Rules 2005 NSW, r 14.28) that the statement of claim be struck out as an abuse of process.
The motion has been argued on the basis that, if the proceedings are found to constitute an abuse of process, it would be open to the Court to make such orders as the nature of the case may require (pursuant to the Civil Procedure Act 2005 NSW, s 90 or UCPR r 36.1), not limited to an order that the statement of claim be struck out. It would be open to the Court, for example, to make an order (pursuant to UCPR r 13.4 or the inherent jurisdiction of the Court) that the proceedings be dismissed.
By a notice of motion filed on 13 March 2014, the plaintiff applies, essentially, for leave to join his sister (the stepdaughter of the deceased) as a co-plaintiff, and to file an amended form of statement of claim incorporating changes consequential upon her joinder.
Pursuant to orders made on 15 April 2014, the two notices of motion have been heard together and, so far as may be relevant, with evidence adduced on the hearing of one motion admitted as evidence on the hearing of the other.
On each side of the record, the parties have filed affidavits, taken no objection to the other side's affidavits, declined to cross examine any deponent, and limited their respective cases to submissions, both oral and written.
No party to the proceedings has any objection to the Court taking into account, on the determination of the motions, documents of record relating to family provision proceedings (numbered 2013/00179204) instituted by the deceased's stepson. Those proceedings have been adjourned, in the Court's Family Provision List, pending the determination of the current proceedings.
On the hearing of the motions, the prospective second plaintiff (the deceased's stepdaughter) formally advised the Court that she has no intention, herself, of making a claim for family provision relief in relation to the estate of the deceased.
BACKGROUND FACTS
Nicholas Kouvakas ("the deceased") died, in New South Wales, on 10 August 2011, aged 78 years, leaving property in the State.
His wife, Helen Kouvakas, predeceased him. They were married in 1959. Each of them had been married previously. Helen died in 2002.
The deceased was survived by:
(a) a daughter, Diana Konakas, born to the deceased and Helen in 1961;
(b) a stepson, Nicholas Lucas, born to Helen in 1944;
(c) a stepdaughter, Yvonne Trakimas, a sister to Nicholas, born to Helen in 1947; and
(d) a granddaughter (the adult daughter of the stepson, Nicholas), Danielle Spanis.
The names of the respective players in this family drama appear to have been spelled differently in different contexts or inconsistently. There is, however, no controversy about their identification.
The deceased's daughter and stepson are, and at all material times were, resident in New South Wales. The stepdaughter is, and at all material times was, resident in the United States of America.
The deceased's estate at the time of his death (estimated to have a value of about $400,000, gross) comprised:
(a) a one half share, as a tenant in common, in a residential property at Arncliffe (folio identifier 5/2/4059), valued at about $350,000;
(b) a motor vehicle;
(c) a bank term deposit; and
(d) a small credit with a health fund.
The deceased's co-owners in the residential property at Arncliffe were his daughter and her former husband, who held their half share of the property as joint tenants.
So far as is disclosed in the evidence, the deceased made, or purported to make, only two wills: one dated 10 November 1993, the other dated 6 August 2011.
The daughter apprehends that the deceased also made a will in or about 1999. She grounds that apprehension, she says, inter alia, on statements she attributes to her half-siblings about the existence of a "third will" and what appears to have been an initial reluctance on the part of the stepson to produce the 2011 will. The step children deny knowledge of any third will.
For the purpose of this judgment, I assume that there is no third will. On the evidence, that is the most prudent assumption. Beyond that, it is not necessary to go. There is no need of a finding of fact as to whether or not there ever was a third will.
The validity of the 1993 will is not in issue otherwise than by reason that, if the 2011 will was valid, it will have been revoked by that will.
The 1993 will provided for the following:
(a) appointment of the deceased's then wife, Helen, and his daughter as his "executors";
(b) a gift of the whole of the deceased's estate to his wife; and
(c) if Helen predeceased him (as happened), a gift of the whole of the deceased's estate to his step children in equal shares.
The will made no provision for the deceased's daughter.
The 2011 will provided for the following:
(a) appointment of the deceased's granddaughter (Danielle) and her husband (George) as executors; and
(b) in the events as have happened, a gift of the whole of the deceased's estate to his daughter.
This will made no provision for the deceased's step children.
The 2011 will was witnessed by the deceased's stepson and the granddaughter at a time when, shortly before his death, the deceased was in hospital.
The stepson took advice from a solicitor (via telephone and facsimile transmission) in the preparation of the 2011 will at the request of the deceased - or, perhaps, as he contends, at the request of the deceased's daughter conveyed to him, indirectly, via the deceased's granddaughter. The solicitor provided drafting advice of a relatively formal character without any personal engagement with the deceased.
The deceased's daughter played no direct role in the preparation of the 2011 will.
The deceased may have apprehended that a new will was required because of the possibility that the daughter's ex husband was provided for in his then current will.
Upon the assumption that there was no "third will", that appears to have been a misapprehension, influenced perhaps by the fact that the deceased's son-in-law remained on the title of the Arncliffe property.
It is not necessary to delve into the history of the family's property dealings beyond noting the possibility that, as the deceased's stepson contends, the absence of any provision for the daughter in the 1993 will may be explained by contributions made to her wellbeing by her parents during their respective lives. The deceased and his wife (the mother of the current combatants) lived with the deceased's daughter (and, for a time, her then husband) in separate accommodation on the Arncliffe property.
A grant of letters of administration, with the 2011 will annexed, was made in favour of the daughter by the Registrar on 14 May 2013 with the express acquiescence of the deceased's stepson, pursuant to orders made by the then Probate List Judge, in December 2012, after each of the stepson and the granddaughter had sworn affidavits in which they deposed to personal doubts they had about the validity of the will.
The stepson and the granddaughter deposed to facts which suggest that, at the time of execution of the instrument dated 6 August 2011, the deceased lacked testamentary capacity, and did not know or approve of the contents of the will he purportedly signed.
Following the grant of administration to the daughter, and the stepson's subsequent commencement of family provision proceedings, the daughter and the stepson engaged in a process of mediation (on 25 October 2013) without success.
It was during, or immediately following, that unsuccessful mediation that the stepson filed his statement of claim seeking to have the letters of administration granted to the daughter revoked.
The unchallenged evidence of the daughter is that there has been a partial distribution of the deceased's estate (that is, property other than the land) in reliance on the grant of administration now under challenge.
THREE SETS OF PROCEEDINGS
An understanding of the issues presently under consideration on the hearing of the parties' respective motions requires an elaboration of the procedural history of the three intersecting sets of proceedings affecting the estate of the deceased.
The Administration Proceedings
The grant of administration of the 2011 will, now under challenge, was made in proceedings numbered 2012/00173956 ("the administration proceedings").
Those proceedings were commenced, and concluded, on the nominal basis that they were non-contentious.
However, what occurred during the course of the proceedings demonstrates that not everything is as it may have seemed.
The daughter advertised her intention to apply for a grant of administration, by a formal notice duly published in a local newspaper, on 4 January 2012.
Consistently with the Probate Rules (SCR Pt 78 r 10 as then in force), it was in terms to the following effect:
"AFTER 14 days from publication of this notice an application for Administration of the Estate of NICHOLAS KOUVAKAS late of Arncliffe in the State of NSW, retired Factory Manager, will be made by Diana Konakas, the daughter of the deceased and [sic] that an application will be made to dispense with or reduce the penalty of the Administration Bond. Creditors are required to send particulars of their claims upon his Estate to [the solicitors for the daughter, identified by address, document exchange number, telephone number and file reference]."
The newspaper (The Sydney Morning Herald) could reasonably be expected to come to the attention of the deceased's stepson, locally resident, but not necessarily to the attention of the deceased's stepdaughter otherwise than through family connections.
The proceedings were commenced by a summons filed, by the daughter, on 31 May 2012, predicated on an assumption that the deceased had died intestate.
By a notice of motion filed on 22 November 2012, directed to the deceased's stepson, the granddaughter and a former solicitor of the deceased (Vasso Tsolakis) , the daughter (pursuant to the Succession Act 2006 NSW, s 54 and the Probate and Administration Act 1898 NSW, s 150) sought orders designed to interrogate the respondents to the motion about the existence, and availability, of documents bearing the character of testamentary instruments of the deceased.
On the return date of the motion (3 December 2012) a Registrar referred it to the Probate List Judge for the purpose of giving effect to an agreement for the production of documents, coupled with an adjournment of the proceedings to the Registrar's List the following week.
On 10 December 2012 a Registrar, once more, referred the proceedings to the Probate List Judge for the purpose of giving effect to another inter partes agreement.
On that referral the judge, that same day, made "by consent" orders to the following effect (with emphasis added):
(1) Order that the respondent solicitor and the granddaughter file and serve affidavits listing all the assets of the deceased, and provide copies of all relevant documents including, but not limited to, cheque butts, credit cards, bank statements and all other relevant items and documents (by a specified time) to the office of the solicitors for the daughter.
(2) Order that the respondents [including the deceased's stepson] do all things necessary to enable the deceased's daughter and her solicitor to file an amended summons for letters of administration in the estate of the deceased.
(3) Order that the granddaughter and her husband withdraw and renounce their appointment as executors under the will of the deceased dated 26 August 2011.
(4) Order that the granddaughter cause the necessary notice to be filed in relation to the renunciation by her and her husband of their appointment as executors under the 2011 will.
(5) Order that the respondents pay the daughter's costs in the sum of $11,000 including GST within a specified time.
(6) Order that the proceedings be stood over the Registrar's list on 18 February 2013."
On 18 February 2013, when the proceedings were mentioned in the Registrar's list, counsel appeared for both the daughter and the stepson.
A formal record made on that occasion reads: "Referred to Registrar - to be considered as a non-contentious application".
On 21 February 2013 the daughter filed an amended summons claiming a grant of administration with the 2011 will annexed, noting that the executors named in the will were unwilling or unable to act.
On 6 May 2013 the daughter's solicitor filed, in response to a requisition issued by the Court, a formal Renunciation of Probate form executed by the deceased's granddaughter, and another one executed by her husband, both dated 3 May 2013, accompanied by the original of the 2011 will.
On 14 May 2013 the formal grant of administration, with the 2011 will annexed, was made in favour of the deceased's daughter.
The affidavits filed in the proceedings leading up to that time included the following:
(a) an affidavit of deceased's stepson sworn on 6 November 2012 (filed on 17 December 2012);
(b) an affidavit of the deceased's granddaughter sworn on 6 November 2012 (filed on 17 December 2012); and
(c) a second affidavit by the granddaughter sworn on 13 December 2012 (filed on 17 December 2012).
Those affidavits were, in part, responsive to the orders made on 3 December 2012 and, in part, responsive to an affidavit sworn by the deceased's daughter on 21 November 2012 (and filed on 22 November 2012) deposing, inter alia, to the circumstances in which the deceased executed the 2011 will.
The affidavits bear the marks of having been prepared with the benefit of legal advice. They record contact details of the solicitor named as a respondent to the daughter's motion. He witnessed one of them. The other was witnessed by a lawyer who appeared before the Probate List Judge on each of 3 and 10 December 2012.
The Family Provision Proceedings
By a summons filed on 12 June 2013 (in proceedings numbered 2013/179204) the deceased's stepson, as plaintiff, seeks family provision relief under chapter 3 of the Succession Act 2006, including:
(a) an order, pursuant to s 58, for leave to commence the proceedings outside the limitation period of one year following the death of the deceased prescribed by the section; and
(b) an order, pursuant to s 59 of the Act, that provision be made for the plaintiff's maintenance, education and advancement in life out of the estate of the deceased.
The deceased's daughter is named in the summons as the defendant. She is apparently contemplated to be the only person with an interest adverse to that of the deceased's stepson.
The summons is predicated upon the daughter having been the recipient of a grant of administration with the 2011 will annexed.
That fact is not left to an inference to be drawn from the comparative terms of the 1993 and 2011 wills.
In an affidavit sworn on 23 August 2013 in support of his summons, the deceased's stepson deposed, specifically, to the deceased having died on 10 August 2011, leaving a will dated 6 August 2011, letters of administration in respect of which had been granted to his half-sister.
In an affidavit sworn on 11 June 2013, the solicitor for the stepson deposed to the following:
"3. The summons herein is being filed to stop time running.
4. The plaintiff Nicholas Lucas is also bringing a separate application for a Grant of Probate in a former will dated 10 November 1993. This application is likely to be contested and so will be brought in solemn form.
5. An application will be made at the first Directions Hearing to have this Succession Act summons stood over generally until such time as the probate application and any contested proceedings arising therefrom have been determined."
On 23 October 2013:
(a) the deceased's daughter affirmed an affidavit in which she deposed to facts relied upon in opposition to a grant of any family provision relief to her half brother; and
(b) her solicitor deposed to his service by post on the deceased's stepdaughter of notice of the family provision proceedings.
In serving notice of the proceedings on the stepdaughter, the deceased's daughter was acting in accordance with her statutory obligations as administratrix of the deceased's estate.
The (Present) Revocation Proceedings
The commencement of the current proceedings (numbered 2013/00322211) by a statement of claim filed on 25 October 2013 has already been noticed.
Both sides of the record are agreed that the grant of administration (of the 2011 will) which the deceased's stepson seeks to have revoked was a grant "in common form" rather than a grant "in solemn form".
The absence of the words "in solemn form" is not necessarily indicative of a grant in common form: Mortimer v David; Estate Dawn Audrey Day, deceased [2005] NSWSC 1166 at [28]. A grant made, on notice to all interested persons, after hearing evidence bearing on the validity of a will, could aptly be described as a grant "in solemn form" notwithstanding the absence of those words in the instrument of grant. The difference between common and solemn form grants is more than merely formulaic.
However, that we are here dealing with a grant in common form may be agreed for the purpose of these proceedings, if only because: (a) the formal document, issued by the Registrar on 14 May 2013, constituting the grant is not expressed to have been a grant in solemn form; (b) the practice of the Court is to treat every grant, and every order for a grant, of probate or administration, prima facie, as a grant in common form unless the grant, or any order pursuant to which the grant is made, expressly describes it as a grant in solemn form; (c) the orders made by the Probate List Judge on 10 December 2012 stopped short of an order that any form of a grant be made; (d) those orders were, in any event, expressed to have been made "by consent", without any formal indication that the Judge had conducted an independent investigation of any element necessary to be established by evidence if a grant, especially a grant in solemn form, were to be made; (e) the formal notation made by the Registrar on 18 February 2013, effectively referring the proceedings to chambers for him to process administratively, was for the daughter's application for a grant to be regarded as a "non-contentious application"; and (f) the Probate Rules (before and after substantial amendment on 21 January 2013, found in Part 78 of the Supreme Court Rules 1970 NSW), and the practice of the Court, recognised as "non-contentious proceedings" for a grant of probate or administration those proceedings in which there is no defendant and no person has been formally cited to see the proceedings or served with a prescribed form of notice of the proceedings, carrying the consequence that the proceedings may be heard in the absence of the public and without any appearance before the Court of any person.
When the Registrar turned his attention to whether a grant should be made in this case he would have been obliged to notice the affidavits of the deceased's stepson and granddaughter filed on 17 December 2012. Those affidavits depose to facts which, if accepted, raise a reasonable doubt about the validity of the 2011 will. Unanswered, they would have been sufficient (but for the stepson's acquiescence in a grant) to sustain a caveat against any form of grant: Azzopardi v Smart(The Estate of Alice Ann Smart) (1992) 2 NSWLR 232 at 236D-238F; GL Certoma, Law of Succession in New South Wales (Law Book Co, Sydney, 4th ed, 2010), paragraph [14.270], pp 274-275. Absent a caveat, there was no formal impediment to a grant of administration being made to the daughter as sought: Richardson v Rearden [2006] NSWSC 1252 at [5] and [21]; Boland v Nahkle; Re Estate of Talbot (Powell J, unrep, 6 April 1992) BC 9203240 at 4.
Although closer attention needs, in the current proceedings, to be given to the distinction between a grant in common form and a grant in solemn form, there is sometimes a need of a working definition of the two forms of grant. One is that a grant in common form is a non-contentious grant, and a grant in solemn form is a contentious grant: Tsagouris v Bellairs [2010] SASC 147; 5 ASTLR 403 at [35]-[36]. Another is that, unlike a grant in common form, a grant in solemn form is a grant per testes (literally, "through witnesses" or, more generally, "through evidence") in the sense that, for such a grant to be made, the Court must be satisfied, on evidence adduced by party to proceedings, of the minimum requirements for validity of a will (including, at least, proof of due execution): Wheatley v Edgar [2003] WASC 118; 4 ASTLR1 at [24] and [26]; Romascu v Manolache [2011] NSWSC 1362 at [180]-[181].
Each of these working definitions is, in practice, both useful and expedient. However, neither of them is entirely satisfactory. Use of the word "contentious" to distinguish grants in common and solemn form is: (a) to resort to a compendious label which tends to obscure topics hidden at a deeper level of analysis, including questions relating to the existence of a dispute, the identification of parties to it, the method of resolution of any dispute, the necessity for and nature of evidence bearing upon the dispute, and the criteria to be applied in deciding whether or not to make a grant in solemn form; and (b) to suggest, incorrectly, that a grant in solemn form cannot be made in the absence of controversy.
Description of the distinction between grants in common and solemn form by reference only, or primarily, to questions of evidence unduly discounts the role played by the Court in its making discretionary decisions about the nature, scope and sufficiency of evidence, particularly in cases in which a critical assessment of the whole of the available evidence (not merely evidence selected by a partisan interest) might reasonably suggest grounds for further inquiry.
The prerequisites for, and the consequences of, the different forms of a grant are closely related to the question of "parties" to proceedings for a grant, a question which, in its turn, focuses attention on the nature of a grant and its susceptibility to an order for revocation.
The proceedings that culminated in the grant of administration made on 14 May 2013 do not sit neatly within the paradigm that distinguishes between "contentious" and "non-contentious" proceedings.
The respective positions of the deceased's step children require separate consideration.
Although the stepson was never, by court order, formally joined as a defendant to the administration proceedings (and, insofar as he was formally named as a party in those proceedings, he was merely a respondent to a notice of motion filed by the deceased's daughter seeking, inter alia, the production of the will in respect of which a grant of administration was subsequently made), he did actively participate in the administration proceedings, he did evidently appear before the Court under the designation of "the defendant", and he did expressly consent to orders that culminated in the daughter's application for a grant of administration being dealt with by the Registrar, in chambers, administratively.
He was, in substance, if not in form, a defendant between (at least) the time he appeared in the proceedings in response to the daughter's motion and the time when he consented to the Registrar dealing with her application for administration as a non-contentious application.
The position of the deceased's stepdaughter is ostensibly different. She did not, at any time before the grant of administration to the deceased's daughter on 14 May 2013, formally appear, in any guise, in the administration proceedings. So far as the evidence goes, she appears not to have received formal, written notice of any proceedings between her siblings (the deceased's daughter and stepson) until a date between 24 September 2013 and 7 October 2013 or thereabouts. The former date is taken from a letter addressed to her by her brother's solicitor (Mr AE Dunne). The latter date is taken from her reply.
The solicitor's letter was in the following terms:
"Dear Ms Trakimas,
Re: The estate of the late Nicholas Kouvakas
As you are no doubt aware we act for your brother Nicholas Lucas who is bringing a claim under the Succession Act of NSW claiming a share of the estate of Nicholas Kouvakas on the grounds that he has not been properly provided for.
Nicholas is entitled to bring a claim as he is an eligible person having lived with Nicholas Kouvakas for some time and being financially dependent on him at that time. We presume that the same situation applies to yourself.
Wills were made by Helen and Nicholas Kouvakas on 10 November 1993 which left the residue of their estate to you and your brother in equal shares.
On 6 August 2011 a last will was made by Nicholas Kouvakas which left his whole estate to Diana Konakas. There were peculiar circumstances surrounding the making of this will and your brother has instructed us to contest it on his behalf.
There is no need for you to become involved in the challenge to the will unless you particularly want to as if Nicholas is successful you will automatically get one half of the estate.
If Nicholas were to fail in challenging the will then he can continue with his Succession Act claim and most likely get a share of the estate albeit a smaller share.
To succeed in a Succession Act claim you have to show that you have need and if you are financially independent and don't have any pressing financial worries then you may not succeed.
On the other hand if you do not become involved in this matter the Court can ignore your rights completely.
If you want to join Nicholas [in] commencing your own Succession Act claim you will have to sign a cost agreement and pay the filing fee of $1,000.00 Australian. Any further costs will be on a pay as you go basis.
We look forward to hearing from you."
The stepdaughter replied to this letter in the following terms:
"Dear Mr Dunne
Thank you for your letter dated Sept. 24.
Finally someone has explained the situation to me in a way that I understand. For the longest time I haven't really known what was going on.
I'm not going to get involved in the Succession Act claim, based on what you have told me, however I will support Nick in any way that I can. Also I'd like to know if we have an action against his former solicitor. It has cost us each about $6,000 and I'm not sure where the money went. According to my brother, we had to outlay all that money because his previous solicitor was completely unprepared and documents were not provided to the other side in a timely manner. Would appreciate your thoughts on this. ..."
Although she may not have had formal written notice of disputation between her siblings, a fair inference from the evidence is that she was aware of disputation between them about the deceased's estate no later than the time of his funeral, shortly after his death on 10 August 2011.
On her own evidence, she rang the deceased on 5 August 2011 to say goodbye; she returned to Australia shortly thereafter to attend his funeral; she attempted to discuss the deceased's will with his daughter at the funeral (and by telephone, shortly after her return to the US), but she was unable, she says, to have a dialogue with the daughter because the daughter became angry. She spoke to her brother at about this time, suggesting to him that he and she might discuss questions about the deceased's estate with a lawyer known to her, to which, she says, her brother responded: "I don't want to do this. There is no need for you to be involved. I can handle it on my own."
That conversation reflects what I find to have been the relationship between the step children and each set of proceedings relating to the deceased's estate:
(a) The stepdaughter has never, at any material time, intended, on her own account, to apply for probate or family provision relief in relation to the estate of the deceased.
(b) She has, nevertheless, at all material times actively supported her brother in his endeavours to give effect to the provisions of the deceased's 1993 will, which provided for the estate to be divided between the two of them.
(c) At an indeterminate time before she wrote her letter dated 7 October 2013 she and her brother each paid about $6,000 to his previous solicitor for services rendered in connection with the deceased's daughter's motion for the production of the 2011 will in the administration proceedings.
(d) Although she may not have understood, with clarity, what was happening during the course of the administration proceedings, she was, contemporaneously, aware of them.
(e) She was both conscious that she and her brother shared a common interest (both legal and social) in those proceedings and prepared to allow him to have carriage of their dispute with their half-sister.
(f) She retained her brother's current solicitor to act for her, as well as for him, in the current proceedings on 25 February 2014.
(g) When she came to Sydney in March 2014 she attended a conference with that solicitor and counsel.
(h) Prior to that conference, she did not know that the current proceedings might be dismissed because of events concerning her brother's involvement in the administration proceedings.
(i) She wishes to participate in the current proceedings ostensibly to protect and advance her own claim to a half interest in the estate of the deceased under the 1993 will, but, in large measure, to assist her brother.
Viewing the question as one of substance rather than form, the stepdaughter was less clearly a party to, or a participant in, the administration proceedings than was the stepson. However, she did acquiesce in, and support, his conduct of those proceedings in pursuit of their shared, common, familial interest.
An inference available to be drawn, and which I do draw, from the evidence, and the course of the three sets of proceedings affecting the deceased's estate, is that her conduct is and was at all material times calculated to assist her brother rather than merely to advance her own independent interest.
She instructed her brother's solicitor to act for her four days after her half-sister filed her motion for an order that his statement of claim be struck out. By consenting to her joinder in the proceedings as a co-plaintiff with him, she empowered him to contend (upon his motion for her joinder) that the grant of administration made in favour of her half-sister should be revoked because it was only a grant in common form and she was not a party to the administration proceedings in which the grant had been made.
It is true that she was not formally a party to the administration proceedings; but, I find, she did have an opportunity to join her brother in the conduct of those proceedings and, more particularly, in opposition to their half-sister's application for a grant of administration in respect of the 2011 will. Relying on her brother, she did not take up that opportunity.
He was legally represented: (a) when the administration proceedings were before the Court, in an adversarial setting, on each of 3 December 2012, 10 December 2012 and 18 February 2013; and (b) when he and his daughter (the deceased's granddaughter) each swore an affidavit on 6 December 2012 deposing to the circumstances in which, they say, the 2011 will was executed.
Nevertheless, he says that, when the Probate List Judge made the orders of 10 December 2012 that led to the grant of administration made in favour of the deceased's daughter on 14 May 2013, he did not know of the legal distinction between a grant of administration in common form and a grant of administration in solemn form. Nor did he then know that it was open to him to apply to the Court for a grant of administration in solemn form in respect of the 1993 will or that, by not seeking such a grant, his right to do so in later proceedings might be adversely affected.
None of the parties to these proceedings is well heeled. The deceased's estate is not large. The step children contend that an order requiring them to provide security for the costs of the current proceedings could stultify the proceedings. The stepson has not paid the costs he was ordered to pay his half-sister on 10 December 2012. The stepdaughter has no assets in Australia, though (subject to a mortgage) she owns her own home and has liquid funds in the US.
The stepchildren did not take up an invitation, made during the course of argument in the revocation proceedings, that they provide, in Australia, security for their stepsister's costs.
PRESENTLY AVAILABLE EVIDENCE ABOUT THE CIRCUMSTANCES IN WHICH THE 2011 WILL WAS EXECUTED
As previously recorded, each of the deceased's daughter (Diana), stepson (Nicholas) and granddaughter (Danielle) swore an affidavit in the administration proceedings about the circumstances in which the 2011 will was executed by the deceased.
Each affidavit was sworn before the consent orders of 10 December 2012 were made by the Probate List Judge.
The daughter's affidavit was sworn on 21 November 2012. With knowledge of that affidavit, each of the stepson and the granddaughter swore an affidavit on 6 December 2012 setting out their respective versions of events.
The 2011 will was executed during the afternoon of Saturday 6 August 2011, apparently at about 3.00pm.
In the clinical notes of St George Hospital appears an entry (apparently made at 8.15pm on 6 August 2011) that includes observations of the nursing staff about the circumstances in which the will was executed earlier that day.
None of this evidentiary material has been tested by cross examination.
The daughter's version of events
The daughter's version of events appears in the following extract from her affidavit sworn 21 November 2012:
"9. The deceased made a will in 1993, which appointed me as executrix and gave his estate to Nicholas [the stepson] and Yvonne [the stepdaughter]. However, this was before he and my mother sold their house at Brighton and built another property and lived with me and my ex husband [Jon] at ...... Arncliffe.
10. I am told and believe that the deceased may have made another will after the 1993 will.
11. Sometime in the late 1990's - I believe during 1999 - I recall I had several conversations with my mother, where she said to me "We are leaving you everything."
12. I also recall many conversations with the deceased over those years, after he and my mother moved into the house at Arncliffe. He would say to me,
'I've left everything to you'.
The last time I recall him saying this was on or around late 2010/early 2011, during a conversation I had commenced by talking about my need to prepare a will for myself.
13. I recall that the last conversation I had with my mother about this before she died, when she said to me:
'We are leaving everything to you. I am sure you will be fair.'
14. I am told and believe that the deceased told his friends Ellada and Nick Chiotis that he would leave everything to me; I am also told and believe that he told this to our family friends Mary Christopher and Despina Acquaro.
15. The deceased's and my mother's solicitor for over twenty years was Vasso Tsolakis, of Tsolakis & Co. Solicitors.
16. About a month before the deceased died, he was coughing and he was [sic] his blood pressure was low. He would cough and then pass out. I took him to the Rockdale Medical Centre. They said to me words to the effect,
'You should take your father to the hospital'
I took the deceased to St George Hospital on that same date and he was admitted as a patient.
17. I recall that I visited him on the Friday before he died. The hospital had moved him from ward to ward but most of the time he was in the cardiac ward. I recall I was with him that day, sitting by his bed. He said to me,
'I want to do a new will.'
18. I began to cry because I thought he meant he was going to die.
The deceased said to me,
'I think Jon's name is on the old will.'
Jon is my ex husband.
I said to the deceased,
'Okay'
19. The deceased was speaking clearly and we were speaking together throughout the day. He did not appear to me disoriented or forgetful.
20. My niece Danielle Spanis, the daughter of my stepbrother Nicholas Lucas, visited the deceased regularly whilst he was in hospital and helped my father to pay his bills. Danielle has worked in a bank and is good with paying bills and organising money...
22. On the Friday afternoon after the conversation with my father referred to in paragraphs 17 and 18 above, I saw my stepbrother Nicholas at the hospital. I said to him
'Dad wants to do a new will. Can you get Tsolakis to do it?'
He replied,
'I'm not friends with him [Vasso Tsolakis] any more. I know someone else who might be able to help us.'
23. That Friday evening I spoke to Danielle. I said to her,
'What are we doing to do about Dad doing his will?'
She said to me,
'I'll speak to Dad [meaning her father Nicholas] and see what we can do.'
I said to her,
'He told me he's not friends with Vasso any more and he knows someone else.'
She said to me,'
'Leave it with me and I'll let you know.'
I said to her,
'Can you let me know since I'm working tomorrow and you'll be sitting with him'.
She said,
'I'll ring you tomorrow and tell you what's happening.'
Danielle would sit with the deceased when I was unable to.
24. I recall that the next day I was at work when Danielle rang and said to me,
'It's all organized, I'm meeting Dad at the hospital at three and we're going to do the will.'
I said to her,
'How are you going to do it, is the solicitor going?'
She said,
'No, Dad's got all the paperwork and we're going to fax it to the solicitor from the hospital.'
I said,
'Who's the solicitor?'
She said,
'I don't know'.
I recall that later that afternoon Danielle rang me and said,
'Don't worry its all been done.'
I said to her,
'Thank God for that.'
I then said,
'What did he do?'
She said,
'He left everything to you.'
I said,
'What about his car?'
She said to me,
'That too.'
She then said,
'It's all been faxed off to the solicitor'.
I said to her,
'That's great'.
25. Then I called some friends and told them. I recall I called my friend Nina Vassalo, Despina Anthony and Owen Poole.
26. I recall another conversation I had at the hospital with Ellada and Nick Chiotis and Mary Christopher, who were visiting the deceased. I recall that one of them said to me,
'Your father's left you everything'.
Another one said to me,
'Nick's not going to be very happy'.
I said,
'How do you know, did Dad tell you?'
They said words to the effect,
'He had told us several months earlier when we saw him at Eastgardens. He had said that he had made a new will and that was what he was doing.'"
The stepson's version of events
The stepson's version of events appears from the following extract from his affidavit sworn 6 December 2012:
"Details of conversations and/or instructions, facts and circumstances of the document purporting to be the testamentary of the Deceased dated 6 August 2011.
19. On or about 8 July 2011, I was informed that the Deceased had been admitted to hospital.
20. From 8 July 2011 to 10 August 2011 I attended the hospital almost every day.
21. On 27 July 2011 I was informed by the hospital staff that the Deceased was diagnosed with cancer and that given his condition, he did not have much longer to live.
22. By 6 August 2011 it was apparent to me that the Deceased's medical condition had deteriorated. I was informed by hospital staff that the deceased was given morphine for the relief of pain. It was apparent to me at the time from my visits with the Deceased in hospital that the Deceased lapsed in and out of consciousness. It was apparent to me also at the time that the [deceased] did not have much longer to live.
23. On or about 6 August 2011 I had a conversation with my daughter Danielle Spanis comprising words to the following effect:
She said to me:
'Pop (the Deceased) thinks that John (the Applicant's then ex-husband) is on the Will'; and
'I have spoken to Diana (the Applicant) - she is very upset that [the] ex-husband John is on the Will - can you do something about it? Can you change the will so that her ex-husband does not appear?'
I said:
'Leave it with me'.
25. Subsequently, at the hospital in the presence of the Deceased and my daughter Danielle Spanis I had the following conversation:
Danielle said to the deceased:
'What do you want us to do with your will? Who should I put in your will as beneficiary?'
The deceased did not reply. He appeared to me to be unconscious. I said to Danielle:
'Who should we put down as the beneficiary?;
Danielle said:
'I don't know. Perhaps we should put in the will that Diana is the sole beneficiary'.
25. Subsequently I telephoned a solicitor at Thomas Booler and Co Law, I cannot recall his name, and said to him words to the following effect:
'I need the wording for a will. My step-father is on his death bed.'
He said:
'Who do you want on the will?'
I said:
'I need it for my step-father Nicholas Kouvakas, and the beneficiary to be my half sister Dian Konakas'.
26. [The text of the document that became the 2011 will] was transmitted to me by facsimile to the facsimile machine at the hospital.
27. Subsequent to receiving a copy of the document from a staff member at the hospital, I attempted to obtain the signature of the Deceased on the document. As the Deceased was lapsing in and out of consciousness at the time I attempted to wake him. My daughter Danielle held his arm to facilitate the deceased to place his signature on the document. In this manner the Deceased tried to sign each page of the document. I recall that he did not sign each of the pages. At the time there was a nurse present who placed her signature at the document at the bottom of each page except for the last page. I do not recall the name of the nurse.
28. At the time I signed each page together with my daughter who also signed each page.
29. At the time I signed the document, I do not believe that the Deceased comprehended the content of the document nor its effect. The Deceased was unconscious or partially unconscious at the time he signed the document.
29. I did this because I felt a moral obligation and familial duty to my half-sister Diana Konakas.
30. Soon after I obtained the signature of the deceased on the document in this manner, I formed the view that this was not a valid Will. I formed this view based upon the medical condition of the Deceased at the time of signing the document dated 6 August 2011.
31. To the best of my knowledge and belief there is no other document that purports or is otherwise a Will of the Deceased other than the document dated 10 November 1993...."
The granddaughter's version of events
The granddaughter's version of events appears in the following extract from her affidavit sworn 6 December 2012:
"Details of conversations and/or instructions, facts and circumstances of the document purporting to be the testamentary of the Deceased dated 6 August 2012.
23. On Friday 8 July 2011, the Applicant [the daughter of the deceased] informed me that the Deceased has been admitted to hospital.
24. From 8 July 2011 to 10 August 2011 I attended the hospital every day, on occasion, I would attend the hospital twice or three times a day. On several of these occasions, the Deceased said to me words to the following effect:
'We should have fixed up the papers - Jon is still on the papers' and
'I am worried about the papers. I think John is on the will'.
25. The Deceased only ever used the word 'Will' once and on each other occasion referred to 'the papers'.
26. During these conversations with respect to 'the papers' I noticed that the Deceased was very coherent.
27. On 27 July 2011 the [sic] I was informed, I believe by the hospital staff, that the Deceased had cancer. ...
32. On 6 August 2011 I attended the hospital in the morning at around 8.30am. I intended to see the Doctor and go to pick up my son from soccer, and then return later for a visit with the Deceased.
33. When I arrived subsequently at the hospital the Deceased looked very ill. It was apparent to me that the deceased's condition had deteriorated significantly since the previous evening. I called my husband to attend to my son as I felt uneasy about leaving the Deceased on his own as it was apparent to me that he would not live much longer.
34. On 6 August 2011 at around 10.00am I enquired as to the condition of the Deceased with a member of the nursing unit at the hospital in regard to the medication that the Deceased was prescribed. During this conversation the nursing unit manager said to me words to the following effect:
'Some of the staff do not want to deal with your aunty [the deceased's daughter] as she is very aggressive and confrontational'.
35. Subsequently, I had a conversation with the oncologist who was part of the team treating the Deceased. I do not recall the name of the oncologist but she said to me words to the following effect:
'The treatment that we had hoped to use on your grandfather can not be used. It is most likely that the Deceased will only have at best a week to live'.
36. At around noon on 6 August 2011 I decided to call the Applicant in respect of my conversation with the Deceased about his Will, as it appeared to me that the Deceased's condition was deteriorating rapidly. At about 12.30pm I telephoned the Applicant and said words to the following effect:
'Diana, pop thinks that John is on his Will'.
The Applicant said:
'What - I don't want that fucking bastard to get anything. Ring your dad and see if he knows someone who can do a new Will'.
I telephoned my father, Nick Lucas and repeated the conversation that I had both with the Deceased and Diana in respect of the Deceased's Will.
37. Subsequently at about 1.30pm on 6 August 2011 my father, Nick Lucas telephoned me and said to me words to the following effect:
'I have some papers; we should go to the hospital together'.
38. Subsequently, I telephoned the Applicant and repeated the content of the conversation with my father.
39. Subsequently, I attended the hospital in the afternoon and noticed that the curtains were drawn around the Deceased and there appeared to be a number of people around the bed. I was informed by one of the nursing staff that a BiPap machine was being used to assist the Deceased's breathing. He did not like it so they were taking it off. His breathing was laboured but he was awake and I said words to the effect of
'We are going to fix the papers so that Jon's name isn't on them anymore'
and the deceased said
'you can?'
to which I replied
'yes'.
I then said to the deceased
'someone has to take care of the Paperwork Pop, do you want me to do it?'
The deceased said
'yes, you always pay my bills and things'.
40. Subsequently I left the room for a short period of time while the deceased was attended to by staff. My father and I returned to the room and asked a nurse to help elevate the deceased so we could go through the papers with him. By this time the deceased was very breathless. He did not seem to understand what we were saying to him. I remember that I said
'Pop, if something happens to you, what do you want to happen to your car and your things?'
I repeated this a couple of times but he didn't answer. I then remember that I looked across to my Father who was holding some pages and I said
'Just put Diana's name on it, we will work it out later'.
I said to the deceased
'Pop, we need you to sign this to get John off the papers'.
He did not make any coherent response. He appeared to me to be lapsing in and out of sleep. I was informed by the nurses that the Deceased was heavily medicated. [It] was in this manner and condition that I together with my father facilitated the deceased in signing the papers. I supported the [deceased's] arm and prodded him to keep him awake to sign the document.
I was informed that prior to his death the Deceased was given morphine.
... At the time that the Deceased signed the [2011 will] there was a nurse present whose signature appears at the bottom of the [page]. I do not recall the name of the nurse that signed the document.
41. Subsequently, about an hour later, I spoke to the Applicant. She was at work and I remember that I was very distressed and I said words to the following effect
'I felt like I was torturing him, he just wanted to sleep and he didn't know what I was asking ... we just put your name on it'.
I had a similar conversation with Linda Mallios as she called me just after I had spoken to Diana. I described to her how bad the deceased's condition had been and how difficult it had been."
St George Hospital Clinical Notes
The clinical notes of St George Hospital, relating to observations of the deceased by nursing staff include, in an entry dated and timed (using a 24 hour clock reference) "6/8/11. 20:15", the following observations:
"... Psychosocial: pt communicating little 2° to SOB, but appropriate responses received. Denies pain when asked. Visited by daughters & other family. Signed papers for will & [?] daughter - pt had been agitated as will needed changing - now happy this has been organised. Same [or some?] family members remain agitated re poor prognosis - support given."
PRINCIPLES GOVERNING REVOCATION OF A GRANT OF PROBATE OR ADMINISTRATION
Introduction
An extended elaboration of the principles governing revocation of a grant of probate or administration is required in these proceedings because:
(a) the revocability of a grant may depend on whether the grant was made in common or solemn form.
(b) the grant sought in these proceedings to be revoked is nominally a grant in common form, but the process leading to it being made bore some similarity to the process leading to a grant in solemn form.
(c) there is a need to clarify both: (i) the distinction between a grant in common form and a grant in solemn form; and (ii) the factors relevant to the making, and revocation, of such grants.
(d) an historical exposition of the essential features of common and solemn form grants may assist distillation of principles underlying both the distinction between them, and the jurisdiction of the Court in revocation of a grant, because this area of the law is largely governed by the practice of courts (variable over time and space) rather than abstract, immutable rules.
(e) the practice of the Court, in dealing with applications for the making and revocation of grants, needs to be located in the case management principles (set out in Part 6 Division 1, ss 56-60, of the Civil Procedure Act 2005 NSW) that now inform the Court's conduct of business generally.
The principles to be applied on an application for revocation of a grant of probate or administration (including a grant of administration with a will annexed) are informed by the nature and purpose of, respectively, the grant sought to be revoked and the order for revocation, topics in turn informed by the nature and purpose of the Court's probate jurisdiction generally.
The Source(s) and Nature of Probate Jurisdiction
As confirmed by the Supreme Court Act 1970 NSW, s 22, the jurisdiction of the Supreme Court of NSW, as presently constituted, is grounded upon letters patent dated 13 October 1823 (generally known as the "Third Charter of Justice" in deference to earlier Charters of Justice promulgated by letters patent respectively dated 2 April 1787 and 4 February 1814) issued pursuant to the Imperial Statute (4 Geo IV c 96) known colloquially as the "New South Wales Act" of 1823, the operation of which was preserved by the Imperial Statute (9 Geo IV c 83) known as the Australian Courts Act 1828.
The New South Wales Act authorised the establishment of the Supreme Court by letters patent issued by the Crown. Amongst an array of provisions that reflect the disjointed, scattered nature of judicial administration in England in the formative years of NSW, s 2 provided for the Court to be a court of record, with common law jurisdiction defined by reference to the jurisdiction of England's courts of common law: the Courts of King's Bench, Common Pleas and Exchequer. Section 9 provided for it to be a court of equity by reference to the equitable jurisdiction of the Lord Chancellor. Critically, s 10 provided for it to be a court of ecclesiastical jurisdiction.
The reference to "ecclesiastical jurisdiction" is critical because what we now perceive to be the "probate" jurisdiction of the Supreme Court of NSW, and a subsidiary head of the Court's "equity" jurisdiction, was, at the time of establishment of the Court, perceived (as illustrated by Allen v McPherson (1847) 1 HLC 191; 9 ER 727) to be a separate head of jurisdiction in its own right: ecclesiastical jurisdiction, exercised by courts of England's established Church, the Church of England.
The Court's probate jurisdiction is not coincident with its equity jurisdiction in all respects. It is important to recognise both that fact and reasons for the fact.
No contemporary significance for Australian law attaches to the English, ecclesiastical connection. Australian probate law is, as English probate law evolved, secular, not religious. The importance of the ecclesiastical connection is that, by developing in courts separate from the courts of common law and equity, English probate law was able to develop a distinctive approach to problem solving adapted to the nature of problems required to be solved.
It is not necessary, or desirable, to recognise in probate law or practice the dualism (and debate about fusion fallacy under a "Judicature Act" system) that has bedevilled the relationship between common law rules and equitable principles. Nevertheless, it is important, to an understanding of the functional significance of idiosyncratic probate law and practice, not to subsume the probate jurisdiction in those of common law or equity.
It is not "necessary" or "desirable" for several reasons. First, unlike the common law jurisdiction, the probate jurisdiction is not primarily concerned with claims of right between adversarial parties. It is concerned with the due administration of property (in the form of an "estate") having regard to the interests of the dead, the living and the public.
Secondly, independently of any operation of equity's jurisdiction, a strong evaluative, discretionary element is generally intrinsic to an exercise of probate jurisdiction. It is, for example, a moot point whether equity's "discretionary defences" of laches, acquiescence and delay have any scope for operation, as such, in probate litigation. Independently of equity, an exercise of probate jurisdiction may require the Court to take into account facts able, by close analogy, to be characterised as laches, acquiescence or delay.
Thirdly, with its focus on the management of property, and competing (sometimes unrepresented) interests in property, it is important that the probate jurisdiction of the Court be administered with flexibility, unconstrained by unnecessary jurisdictional divides, able to adapt practice and procedure to deal with practical problems attending property management. It shares this perspective, vis â vis parties to proceedings, with Equity: Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 at 504-506.
Fourthly, probate law and practice has, historically, manifested a capacity for adaptation, and absorption, of common law and equity procedures. In former times, when the ordinary mode of trial at common law was trial by jury, questions of fact in probate litigation (such as a question about a testator's testamentary capacity) were susceptible to jury trial. Equity, for its part, contributed to the probate jurisdiction its procedures for calling fiduciaries to account, one consequence of which is that the law governing the remuneration of executors and trustees is, in substance, uniform: Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247 at [33]-[34] and [41]-[43].
Nevertheless, differences between "probate" and "equity" remain.
One notorious difference relates to the concept of undue influence. In the probate jurisdiction, an allegation of undue influence, made in support of a challenge to the validity of a will, requires proof of actual coercive conduct vitiating the free will of the testator, without the benefit of any form of presumption of undue influence arising from relationships such as may be available in the equity jurisdiction: Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121C-122G; Young, Croft & Smith, On Equity (Law Book Co, Sydney, 2009), paragraph [5.520].
Another, already noticed, relates to the operation, if any, of the equitable defences of laches and acquiescence, and principles of estoppel, in answer to claims made in probate. Resort may possibly be had to them, but, if so, they are not as readily available in the probate jurisdiction as they otherwise are because: (a) in the probate jurisdiction, proceedings are not purely adversarial (Re Estate of Fuld, Deceased [1965] P405 at 409F-411B; Re Estate Pierbon, Deceased [2014] NSWSC 387 at [44]-[50] and [62]-[71]); (b) there is a public interest in seeing that the last will of a free and capable testator is recognised and enforced (Re Dowling; sub-nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 at [23]); and (c) probate procedures are not readily characterised as so defective as to warrant equity's "intervention": Neilson v The Public Trustee; the Estate of Ellen Letitia Neilson (Powell J, unrep, 8 May 1992) BC9201888 at 15 and 18 (reproduced in Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (Powell J, unrep, 20 August 1993) BC9303644 at 20 and 23); Bowler v Bowler (Young J, unrep, 18 December 1989) BC8901301 at 36-39.
These differences are functional, not merely historical. They reflect the unique public interest character of probate proceedings and the subject matter of those proceedings, including the Court's concern to give effect to the testamentary intentions of deceased persons and to protect the interests of persons not present before the Court.
Clauses 14-17 of the Third Charter of Justice confirmed the status of the Supreme Court as a court of ecclesiastical jurisdiction, with powers (under the seal of the Court) to make grants of probate or administration.
Clause 14 provided as follows (with emphasis added):
"14. And whereas, in the [New South Wales Act] it is enacted, 'That the [Supreme Courts of NSW and Van Diemen's Land, now Tasmania, respectively] shall have cognizance of all pleas, civil, criminal or mixed'; and the jurisdiction of the said courts, in all such cases, is thereby settled and ascertained: And it is thereby enacted, 'That the said courts shall be Courts of Ecclesiastical Jurisdiction, and shall have full power and authority to administer and execute, within New South Wales and Van Diemen's Land, and the dependencies thereof, such ecclesiastical jurisdiction and authority as shall be committed to the said Supreme Courts, by Our Charter or Letters Patent'; Now We do hereby grant, ordain, establish, and appoint, that the Supreme Court shall be a Court of Ecclesiastical Jurisdiction, with full power to grant probates, under the seal of the court, of the last wills and testaments of all or any of the inhabitants of that part of the colony, and its dependencies, situate in the island of New Holland, and of all other persons who shall die and leave personal effects within that part of the colony; and to commit letters of administration, under the seal of the court, of the goods, chattels, credits, and all other effects whatsoever, of the persons aforesaid who shall die intestate, or who shall not have named an executor resident within the colony and its dependencies; or where the executor, being duly cited shall not appear and sue forth such probate, annexing the will to the said letters of administration, when such persons shall have left a will without naming any executor, or any person for executor who shall then be alive and resident within the colony and its dependencies, and who, being duly cited thereunto, will not appear and sue forth a probate thereof; and to sequester the goods and chattels, credits, and other effects whatsoever of such persons so dying, in cases allowed by law, as the same is and may be now used in the Diocese of London, and to demand, require, take, hear, examine and allow, and if occasion require, to disallow and reject the accounts of them, in such manner and form as is now used, or may be used, in the said Diocese, and to do all other things whatsoever needful and necessary in that behalf. Provided always, and We do hereby authorize and require the court, to reserve in such letters of administration full power and authority to revoke the same, and to grant probate of the said will to such executor whenever he shall duly appear and sue forth the same. And We do hereby further authorize and require the Supreme Court to grant and commit such letters of administration to any one or more of the lawful next of kin of such person so dying as aforesaid, and being then resident within the jurisdiction of the court, and being of the age of twenty-one years; and in case no such person shall then be residing within the jurisdiction or being duly cited shall not appear and pray the same, to [grant the same to] the Registrar of the court, or to such persons, whether creditors or not of the deceased persons, as the court shall see fit. Provided always, that probates of wills, and letters of administration, to be granted by the court, shall be limited to such money, goods, chattels, and effects, as the deceased person shall be entitled to within the colony."
This grant of jurisdiction by reference to that of an English Court of Ecclesiastical Jurisdiction was limited, in terms and effect, to a conferral of probate jurisdiction. New South Wales did not inherit English Ecclesiastical (church) law generally and the Supreme Court, upon its establishment, was denied ecclesiastical, matrimonial causes jurisdiction: JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), p 293 n 2; JM Bennett, The "Ecclesiastical" Jurisdiction exercised in the Supreme Court of New South Wales, 1824-1890 (Sydney Law School, Research Paper, 1967); Ex Parte King (1861) Legge 1307.
The New South Wales Act was repealed by the Australian Courts Act with the proviso (found in s 2) that the Third Charter of Justice was to continue in operation as if issued under the latter Act.
Section 10 of the New South Wales Act was, in substance, re-enacted as s 12 of the Australian Courts Act, thereby confirming the Supreme Court of NSW as a court of ecclesiastical jurisdiction, with full power and authority to administer and execute within New South Wales such ecclesiastical jurisdiction and authority as had been committed to the Court by the Third Charter of Justice.
Section 24 of the Australian Courts Act is generally seen as the primary, statutory authority for the reception of English law, "so far as the same can be applied", in the colony of New South Wales. It fixed 25 July 1828 as the date for reception of English law in New South Wales, giving a measure of clarity to common law rules, for the application of English law to an English colony, commonly associated with Sir William Blackstone's Commentaries on the Laws of England (1st ed, 1765-1769) vol 1, pp 106-107 or, beyond Blackstone (as Professor Alex C Castles explains in An Australian Legal History (Law Book Co, Sydney, 1982), at pp 4-14), a 1722 Privy Council memorandum relating to a case simply entitled Anonymous.
As explained in a classic NSW practice book (R Hastings and G Weir, Probate Law and Practice (Law Book Co, 2nd ed, 1948) at p 6), the combined effect of the Third Charter of Justice and the Australian Courts Act was to confer upon the Supreme Court of NSW a jurisdiction in probate, and to apply the law, manner and custom of England (and, in particular, the Diocese of London) as far as it should be applicable in NSW as at 25 July 1828.
It was not until the enactment of the Probate Act 1890 NSW that the Court's probate jurisdiction ceased to be styled "Ecclesiastical": Hastings and Weir (2nd ed, 1948), pp 21-23; JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), chapter 8, esp pp 133 and 139-141.
The 1890 Act was subsumed in the consolidation of legislation effected by the Wills Probate and Administration Act 1898 NSW, since the enactment of the Succession Act 2006 NSW known as the Probate and Administration Act 1898 NSW.
In NSW at the present day, the legislative foundations for the Court's probate jurisdiction (in the widest sense of that term) are found in the Probate and Administration Act and the Succession Act.
Primary provisions in the Probate and Administration Act include s 33 (which confirms that probate jurisdiction is vested in the Court), s 40 (which confirms that the Court's jurisdiction extends to grants of probate or administration of the estate of any deceased person leaving property, whether real or personal, in NSW), s 40D (which provides for the effect of an order revoking a grant of probate or administration), s 42 (which provides for all applications for probate or letters of administration to be made in such manner as may be prescribed by Rules of Court), s 44 (which provides for estate property to vest in an executor or administrator upon a grant being made), s 61 (which provides that, in the interim between death and a grant being made, estate property is deemed to be vested in the NSW Trustee), ss 63 and 74 (which empower the Court to appoint administrators), s 75 (which enables grants to be made where an executor named in a will neglects or refuse to prove a will) and ss 90-92 (which provide protection for parties dealing with estate assets on the faith of a grant).
The case law is inconclusive, if only because of the diversity of circumstances in which a grant, and a revocation order, can be made: eg, In re Goode (1890) 11 NSWR (Eq) 281 at 285-286, 287 and 288; Birch v Birch [1902] P130 at 138-139; Woodhead v Perpetual Trustee Co Limited (1987) 11 NSWLR 267 at 273D-274B; Ajili v Dinica-Popp; The Estate of Mohamed Salah Ajili (Windeyer J, unrep, 19 November 1995); BC 9506827 at 2; Clay v Karlson [1999] WASC 205 at [4]; Mortimer v David; Estate Dawn Audrey Day, deceased [2005] NSWSC 1166 at [29]; Loupos v DemirgelisI [2008] NSWSC 1207 at [53]; Kozak v Berwecki [2008] NSWSC 39 at [3]; Tobin v Ezekiel [2012] NSWCA 285 at [9]-[18].
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].
That said, the conduct of an application for a revocation order may be informed by the character of an order sought consequentially upon revocation of a grant. The Court will generally be mindful that the propounder of a will bears the onus of proving the will to be valid, according to established practice articulated in cases such as Re Eger; Heilprin v Eger (Powell J, unrep, 4 February 1985) BC 8500997 at 72-74; Re Hodges v Shorter v Hodges (1988) 14 NSWLR 698 at 704-707; Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 289-290; and Ridge v Rowden; Estate of Dowling (Santow J, unrep, 10 April 1996) BC 9601342 at 39-46.
Nevertheless, upon an exercise of probate jurisdiction the Court exercises a vigilance beyond that necessary, or appropriate, in ordinary adversarial litigation. Questions of onus tend, in practice, to be governed not so much by who alleges what (Currie v Dempsey (1967) 69 SR (NSW) 116 at 125) as upon what it is that the Court, in all the circumstances, and informed by experience and considerations of fairness (JH Wigmore, Evidence in Trials at Common Law (Little Brown & Co, 3rd ed, 1940) volume 9 Book II), apprehends it must be satisfied of if a will is to be held valid.
Presumptions that apply in the probate jurisdiction are settled in character, but fact-sensitive and essentially in the nature of standardised inferences from common experience rather than abstract rules of law: Actors & Announcers Equity Association of Australia v Fontana Films Pty Limited (1982) 150 CLR 169 at 213-215. In pronouncing for or against the validity of a will the Court must ultimately be guided by its conscientious assessment of the available evidence: Worth v Clasohm (1952) 86 CLR 439 at 452-453.
No grant is made, or revoked, as of right even if, in particular situations (such as where, on an application for a revocation order, it is established that the testator is alive or that a grant was obtained fraudulently), the Court's order might reasonably be thought to follow from facts proved. More particularly, the Court generally reserves a right to decline to make a revocation order if not satisfied that there is utility in making the order: Willis v Earl Beauchamp (1886) LR 11 PD 59 at 61, 62, 63, 64 and 65; In re Goode (1890) 11 NSWR (Equity) 281 at 285-286, 286-297 and 287-288; Stanley v Stanley [2000] NSWSC 1133 at [11] and [33]-[34]; Richardson v Rearden [2006] NSWSC 1252 at [19]-[21]; Tobin v Ezekiel [2012] NSWCA 285 at [5]-[9].
I adopt, as substantially correct, the following observations of Powell J in Neilson v The Public Trustee; the Estate of EL Neilson (unrep, 8 May 1992) BC 9201888 at 14-15 (repeated in Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (unrep, 20 August 1993) BC 9303644 at 19-20, and applied by Bryson J in Stanley v Stanley [2000] NSWSC 1133 at [8] and Campbell J in Richardson v Rearden [2006] NSWSC 1252 at [16]):
"That the Court possesses, and, when necessary and appropriate, will exercise, the power to revoke a grant which it has made - even after the death of the original grantee (see, Ayling, deceased January (1949) (UK) unreported, but noted [in] Tristram and Coote's Probate Practice 24 Ed (1973) at 470 [;] In re Gillard (1949) VLR 378) is undoubted, the classes of case in which the power has, in the past, been exercised being usually described as being: 1. where the grant is, in effect, a nullity; 2. where the surname or first Christian name, of the deceased in the grant is seriously incorrect; 3. where the grant has been obtained on a false, or incorrect, basis; 4. where, by reason of supervening events, the grant has become defective. (see, for example Tristram and Coote op cit at 426-433; Williams Mortimer and Sunnucks: Executors Administrators and Probate 16 Ed. (1982) at 335-339).
It should, however, be noted that, although the power to revoke a grant undoubtedly exists, it is not exercised as a course, or even as matter of right; rather, the question whether, in a particular case, the power ought to be exercised is one which lies in the discretion of the Court, having regard to all the circumstances of the case (In the Will of Lamont (1881) 7 VLR (IP and M) 86; In re Goode (1890) 11 NSWLR (Eq) 281; In re Gillard (supra)). Since that discretion is to be exercised after having regard to all the circumstances of the particular case, it is undesirable - and, in any event, probably impossible - to attempt to lay down, in advance, any general principles as to the way particular circumstances ought to affect the exercise of that discretion.
However, having regard to the particular features of [a] case, it may be instructive to look at the way such questions as long delay, estoppel and the concept of abuse of process have been regarded over the years ...".
In my opinion, these observations apply, with equal analytical force, to both common form and solemn form grants, subject only to such (if any) deference due to principles governing the finality of judgments in the particular case.
The distinction between a grant in common form and a grant in solemn form is not so clear, analytically, to warrant different treatment governed by the form of the grant alone.
A grant in common form can be made at the conclusion of contested proceedings: eg, Loupos v Demirgelis [2008] NSWSC 1207 at [1]-[2], [54] and [57]. A grant in solemn form can be made notwithstanding the absence of any contest (In re Levy, deceased [1953] VLR 652), the critical factor being service of notice of the proceedings on all interested persons: Mortimer v David; Estate Dawn Audrey Day, Deceased [2005] NSWSC 1166 at [28]. .
The fact that a grant in solemn form can be revoked if procured by fraud (In re Gillard, deceased [1949] VLR 378 at 382-383; Birch v Birch [1902] P 62 and 130) is not a point of distinction because all court orders, including a grant in common form, are liable to be revoked if obtained by fraud.
Nor is the fact that a solemn form grant (like a common form grant) can, without controversy, be revoked if a subsequent, valid will later comes to the attention of the Court. Its significance is, rather, as a demonstration that principles governing res judicata cannot be applied in the probate jurisdiction (in the context of either form of grant) unqualified by the public interest in giving effect to a testator's last known, due expression of testamentary intentions.
If, as Newell v Weeks (1814) 2 Phil Ecc 224 at 230-234; 161 ER 1126 at 1129-1130 and Hoffman v Norris (1805) 2 Phil Ecc 230; 161 ER 1129 note (b) demonstrate, the principle (endorsed by Osborne v Smith (1960) 105 CLR 153 at 158-159) that a non-party who acquiesces in the making of a grant may be bound by it can apply to a grant in common form, no less than to a solemn form grant, the foundation for a rigid distinction between the two forms of grant, on an application for revocation of a grant, is substantially undermined.
The facts of a particular case, rather than merely the form of a grant, must be consulted. A contrast between Newell v Weeks,Hoffman v Norris, Bell v Armstrong (1822) 1 Add 365 at 375-376; 162 ER 129 at 132-133, Merryweather v Turner (1844) 3 Curt 802 at 817; 163 ER 907 at 912 and Mohan v Broughton [1899] P 211 at 217, 218-219 and 220 (and on appeal at [1900] P 56 at 58) demonstrates this.
An occasion for the application of principles governing the finality of judgments arises most obviously when an application is made for revocation of a grant in solemn form. That is because: (a) the Court can reasonably be taken to have investigated questions about parties, evidence and the due administration of justice before making the grant; and (b) an applicant for a revocation order can reasonably be taken to have, at least, a forensic onus to displace findings expressly or impliedly made by the Court as a foundation for the grant.
Nevertheless, a substantial occasion for the application of principles governing the finality of judgments may arise (as in these proceedings) on an application for revocation of a common form grant where it is established that a person with an interest adverse to the grant did, in fact, stand by and, without taking up an opportunity to intervene, allow the grant to be made.
The distinction between common and solemn form grants is both real and useful as a rule of practice, but it is not, of itself, universally determinative of an application for revocation of a grant. Ultimately, the outcome of such an application may depend on the underlying facts of the particular case.
It would be a vain effort, and an imprudent one, to endeavour, by emphatic statements, to constrain the Court's discretionary power to revoke a grant. There is, in the administration of justice generally and in the administration of estates, a need for principled flexibility in decision-making.
The best that can be done is, perhaps, to recognise that: (a) all decisions about the revocation of grants should be made with the purpose served by the probate jurisdiction in mind; and (b) insofar as judicial decision-making may be assisted by reference to precedents, patterns of decision-making may, from time to time, be found in earlier cases.
On a search for such patterns there are some constants. Chief amongst these are respect for the autonomy of the person whose estate falls for consideration, and the necessity to maintain the integrity of the Court's processes.
In the former category fall cases in which a grant of probate or administration must be set aside because "the deceased" is found not to have been dead at the date of grant (Ex parte Keegan (1907) 7 SR (NSW) 565 at 566; Probate and Administration Act 1898 NSW, s 40C), and cases in which a grant should generally be set aside because of a subsequent discovery of a "last will".
In the latter category are cases in which a grant of probate or administration is demonstrated to have been procured by fraud (Re Gillard [1949] VR 378), or by misstatements or material non-disclosure (Murakami v Murakami [2005] NSWSC 953 at [29]-[33]), or to be attended by an error affecting its efficacy (In the Will of Christian (1975) 25 FLR 89; Kozak v Berwecki [2008] NSWSC 39 at [3]).
Even in these cases, irregularity in the making of a grant does not relieve the Court of a need to consider what, if anything, is necessary for the due administration of the particular estate, looking forward.
Where, for example, a grant is made by error, despite the pendency of a caveat, proof of the error may justify an order for revocation of the grant (Kozak v Berwecki [2008] NSWSC 39 at [3]); but, before any revocation order is made, the Court may require evidence of a prima facie case that the will the subject of the grant is invalid: Swalwell v Swalwell (Needham J, unrep, 15 July 1988).
Likewise, where a grant of administration is made irregularly, without due notice to an interested person, the Court might decline to make an order for revocation of the grant if there is no utility in doing so: Stanley v Stanley [2000] NSWSC 1133 at [8]-[11] and [33]-[34].
At the other end of a spectrum (if there be one)may be cases in which the entitlements of beneficiaries and creditors are not, in the abstract, at issue but due management of an estate is. Illustrations of cases in which a revocation order has been made in the interests of due management of an estate can be found in Estate of Erminia Agnes; Rogers v Rogers [2009] WASC 358 at [23]-[31]; Upton v Downie [2007] NSWSC 1095 at [44]-[56]; and Estate Wight; Wight v Robinson [2013] NSWSC 1229. Primary authorities governing such cases, in New South Wales, are Bates v Messner (1967) 67 SR (NSW) 187 at 191-192; 86 WN (Pt 2) NSW 35 at 39-40 and Mavrideros v Mack (1998) 45 NSWLR 80 at 1-7F-108C.
Particular difficulties, about the integrity of court processes and the due administration of an estate, may be seen in a case in which repetitive or otherwise vexatious applications are made affecting an estate. It is in this context that principles governing the finality of court proceedings, or protection of the Court's processes against abuse, may have their greatest scope for operation. Edwards v Boyd (1958) 75 WN (NSW) 525 is an example of this. The Court was required, there, to take a stand against a litigant in person intent upon making successive applications, on different grounds, seeking to re-litigate the same substantive issues.
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 of a 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 the revocation of a grant. That 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.
One reason why Newell v Weeks and associated cases (including Hoffman v Norris and White, Merryweather v Turner and Wytcherley v Andrews) may have become emblematic of probate practice is that, in themselves, they reflect a pattern in the conduct of probate litigation across the ages. Whether by accident or design, persons motivated by similar interests or objectives can be found to have stood by while some disputes have been played out, and to have endeavoured to intervene selectively or successively. In these types of case, the Court may be called upon to manage the conduct of litigation in varying degrees.
In the exercise of its jurisdiction to revoke a grant the Court should be mindful that, in an appropriate case, it may be open to it to make an order on terms: for example, as to the payment of costs thrown away by a belated request for a will to be proved in solemn form, or for the provision of security for costs associated with a prospective application for proof in solemn form. Care needs to be taken, however, not to resort to the making of a conditional order for revocation which does not advance the purpose for which an exercise of probate jurisdiction exists.
A Checklist of Topics for Consideration
Upon consideration of an application for revocation of a grant of probate or administration the Court might reasonably expect, at an early stage of the proceedings, to hear from contending parties reasons for, and against, the making of a revocation order.
Historically, the Court has been mindful of a need to keep estate litigation under a tight rein. That necessity is reinforced by the "overriding purpose" (identified in s 56(1) of the Civil Procedure Act 2005 NSW) of facilitation of the just, quick and cheap resolution of real issues in proceedings.
Without being prescriptive in any way, the topics upon which the Court might reasonably expect to receive assistance from parties before exposing an estate to expensive, protracted litigation include the following:
(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.
It may not be necessary, in a particular case, for all these topics to be canvassed. They are intended to be no more than an indication of potential topics of interest. The list is not exhaustive.
APPLICATION OF PRINCIPLES TO FACTS
Upon consideration of the two motions before the Court, applying the principles elaborated in this judgment:
(a) I have reminded myself of the central object of an exercise of probate jurisdiction in these proceedings - service of the due and proper administration of the estate of the deceased, having regard to any testamentary intention expressed by him and the interests of parties who may be beneficially entitled to the estate.
(b) I have consulted each of the "check list" topics identified, in an endeavour to take into account all the circumstances of the case that may be material to the decisions required to be made.
(c) I have measured the grant under challenge against the criteria for a solemn form grant (relating to the participation of interested persons, the sufficiency of evidence of testamentary intention and the due administration of justice) to gauge the quality of the grant, albeit nominally a common form grant.
(d) I have viewed the facts of the case, and the quality of the grant, through the prism of probate law and practice in this State, as illustrated by Powell J's exposition, and application, of the principles governing a revocation order in Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (unrep, 20 August 1993) BC 9303644 at 19-25.
(e) I have taken into account competing considerations arising from a need not to be too hasty in denying a party a full trial (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130) and case management considerations such as those canvassed in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 210 [90] - 215[103] and 217[112]-[113], endeavouring to accommodate the rights and obligations of particular litigants within the broader context of constraints on the availability of resources for the administration of justice generally.
The grant of administration which the deceased's stepson applies, with the support of his sister, to have revoked is (albeit a grant in common form) a grant in which he acquiesced, in respect of a will the execution of which he procured, knowing at the time of its execution that the sole beneficiary named in the will was his stepsister and, with his daughter (granddaughter of the deceased), accepting at that time that a will in those terms (not unreasonably) represented the intention of the deceased.
The stepson allowed his sister to be told, before the death of the deceased, that the deceased had made a will in her favour, but he did not (before the death of the deceased) convey to her his ex poste, private reservations about the validity of the will. By that delay, he denied her an opportunity to secure an independent assessment of the deceased's testamentary capacity and intentions.
The will the subject of the grant is regular in form, although executed by a testator in a state of frailty. It was drafted by a solicitor instructed by the stepson, without any material involvement of the deceased's daughter beyond alerting him to the deceased's expressed desire to make a fresh will.
The stepson and his daughter (the deceased's granddaughter) witnessed the will personally. They did so, openly, in the presence of an independent, objective observer: a member of the staff of the hospital in which the deceased was then a patient. The "hospital notes" recorded by that staff member are expressed in terms consistent with the deceased having duly executed the will, with knowledge of its contents.
Having acquiesced in a grant of administration being made in favour of his stepsister, the stepson procured a renunciation of the office of executor by his daughter (granddaughter of the deceased) and her husband. The granddaughter, in fact, joined with her father in consenting to orders directed to that end. Both executors named in the will must be taken to have acquiesced in the grant made referable to it, notwithstanding that the will thus given effect favoured the interests of the deceased's daughter over those of the stepson, and (subject to any application made by him for family provision relief) left him with nothing.
The stepson's acquiescence in the grant manifested a concern for his own interests. It reflected an acceptance that the will was valid. In common with his daughter and the solicitor then acting for them both, he went so far as to consent to an order that he pay costs of his stepsister referable to her motion for production of the will to the Court. He did not, at that time, apply for proof of the 1993 will in solemn form but, rather, determined that he would make an application for family provision relief predicated on the validity of the 2011 will. An affidavit sworn by him in his family provision proceedings expressly identified the 2011 will as the last will of the deceased.
He could not but have been aware that, subject to his family provision application being determined in due course, he had deliberately chosen, at a time when he was legally represented, to accept the validity of the 2011 will. In the circumstances of this case, little weight can be attached to his protestation of ignorance of the distinction between a common form and a solemn form of grant. Nor can substantial weight be given to his profession of ignorance about the availability to him, and the possibility of a loss by him, of a right to apply for a grant in solemn form referable to the 1993 will. There is no evidence that provides a reasonable foundation for a finding of fact that discounts the competency of the lawyers who represented him in the administration proceedings or the quality of such legal advice as they may have given him.
If the stepson were to be granted an opportunity to propound the 1993 will now, forcing his stepsister to apply for a solemn form grant referable to the 2011 will, each of the parties and the estate would be exposed to substantial legal costs (not readily able to be borne by the estate or any interested party) in litigation which would involve very substantial questions of credit, and could involve a myriad of witnesses beyond interested members of the deceased's family.
The composition of the estate, not merely its size, is such as to have a substantial impact on the deceased's daughter of any application by the stepson (with or without his sister) to obtain it or a share in it. The deceased's principal asset is a half share of the residential property where he, and his daughter, lived for many years and in which she too has an ownership interest. The present significance of this is that the daughter has a particular, personal interest in an orderly determination of questions affecting the title to her home, and the Court should not lightly contribute to uncertainty of title by condoning disruptive changes of course in the conduct of estate litigation.
The deceased's stepdaughter (sister of the stepson, who has had principal carriage of their disputation with the deceased's daughter) must be taken, objectively, to have acquiesced, with her brother, in his decision: (a) to facilitate a grant of administration in respect of the 2011 will; and (b) to refocus his attention on a family provision claim.
She knew of the deceased's impending death, she attended his funeral. She sought to engage her stepsister in negotiations about his estate. She bore legal costs, in common with her brother, in his conduct of estate litigation against their stepsister leading to the grant of administration now sought to be revoked. Her evidence is reasonably open to a finding that her principal motivation is, and was at all material times, to support her brother's bid to obtain a share of their stepfather's estate rather than to advance her own interests.
Given her evident subordination of her personal interests to those of her brother, there is nothing in his decision to divert his attention away from a probate suit towards a family provision application that compels a conclusion that she should not be bound by his "compromise" of the administration proceedings without insistence that she first be formally notified of the orders made in December 2012 and explicitly made a party to the proceedings.
There is nothing in the conduct of the deceased's daughter that could fairly be said to make it unconscionable for her to resist the application for revocation of the grant made in her favour. She did not act unconscientiously in steps taken towards execution of her father's will. She did not act unconscientiously in the proceedings leading to the grant. She has not acted unconscientiously in resisting her siblings' application for revocation of the grant.
Even if the evidence of the deceased's stepson and granddaughter were to be taken (as it could be) as having established a prima facie case that the 2011 will was invalid, the revocation proceedings constitute an abuse of the process of the Court. They are both vexatious and oppressive. The stepson, with the acquiescence of his sister, has engaged in litigation tactics ostensibly motivated by an avowed object of forcing a "settlement" of his claims on his stepsister rather than attempting to give effect to the deceased's intentions. It is, by no means, improper to harbour an honest, open aspiration for settlement of an estate claim. Here, however, the stepson has subordinated due administration of the estate to his own private interests in an endeavour to force his stepsister to a settlement.
He has, by successive twists and turns, attempted to suppress knowledge of the 2011 will, failed in a timely way to propound the 1993 will in solemn form, acquiesced in a grant of administration in respect of the 2011 will, engaged his stepsister in family provision proceedings, and (in the absence of a family settlement) belatedly applied for a revocation order as a preliminary of an application for a grant referable to the 1993 will. He has done this, forcing his stepsister to incur substantial legal costs, without satisfying a costs order made against him in the administration proceedings.
There continue to be reasonable grounds for regarding the 2011 will as the last valid will of the deceased, notwithstanding affidavit evidence to the contrary sworn by the deceased's stepson and granddaughter. The will is regular on its face. The deceased's daughter (as his only child) is the natural object of his bounty. The stepson and granddaughter accepted this at the time they arranged for the will in her favour to be executed. The hospital notes are consistent with the regular execution of a valid will. No suspicion attaches to the involvement of the deceased's daughter in the process. Evidence is available that, independently of the will, the deceased made statements indicative of a testamentary intention to favour his daughter.
Due administration of the estate, and the interests of justice, favour a summary determination of the revocation proceedings. The deceased's stepson, with the acquiescence of his sister, deliberately chose to treat the 2011 will as valid as a foundation for a family provision claim, in circumstances in which, in the interests of justice, he should be held to that choice. That is so, whether the choice he made is to be construed as evidence of, or an admission about, the validity of the will, or a purely forensic tactic. There is no public interest impediment to him (and his sister) being held to that decision. He retains an opportunity to pursue his claim for family provision relief, albeit that he will require an extension of time if a grant of such relief is to be made.
In the circumstances of this case, it would not be appropriate to make an order for revocation of the 2011 will on terms (for example) that the stepson bear the, or substantially all, costs of the proceedings to date. I am satisfied that, whether or not he could be said to have established a prima facie case of invalidity of the 2011 will, his application for a revocation order is an abuse of process. Were he to be granted a revocation order subject to an order that he pay or bear substantial costs, it might do no more than substantially diminish a small estate, given his financial circumstances, or accentuate the stepson's claim that he is in "need" of a grant of family provision relief.
As it is, he may seek to pull himself up by his bootstraps in the family provision proceedings by reference to costs liabilities incurred in misconceived legal manoeuvres. Whether (and, if so, to what extent) he can do so is a question to be left to the judge allocated to determine those proceedings.
In all the circumstances, I propose, summarily, to dismiss the revocation proceedings, leaving the deceased's stepson to such (if any) entitlements he may have in the family provision proceedings. I do not do so lightly. All three of the persons materially interested in the estate of the deceased acquiesced in the grant of administration now under challenge. The evidence upon which that grant was founded is not unequivocal, but it was sufficient to ground the grant, having regard to: (a) the involvement of the stepson in preparation of the deceased's will; and (b) his calculated decision to acquiesce in the grant and, in his own self-interest, to refocus his challenge to the will on a family provision claim. In doing so, he deliberately and publicly acknowledged the validity of the will. The due administration of justice, and of the estate of the deceased, favoured the making of the grant.
All things considered, the interests of justice (and the due administration of the estate of the deceased) tell decisively in favour of:
(a) preserving the operation of the grant of administration in favour of the deceased's daughter;
(b) holding the stepson, and his supportive sister, to his deliberate decision to pursue such, if any, entitlement he may have to family provision relief; and
(c) preserving a small estate from a second round of probate litigation designed, principally, to pressure the daughter into a settlement rather than to serve the deceased's testamentary intentions.
Before dismissing the proceedings, in order to formalise the deceased's stepdaughter's status in the proceedings, I propose to order that she be joined as a plaintiff in the revocation proceedings, and that the draft amended statement of claim sought to be advanced by her and her brother stand as the form of originating process in those proceedings to be dismissed.
CONCLUSION
Accordingly, I make the following orders and notation (in the proceedings numbered 2013/00322211):
(1) ORDER that Yvonne Trakimas be joined as a plaintiff in the proceedings.
(2) ORDER that Nicholas Lucas be designated the first plaintiff, and Yvonne Trakimas be designated the second plaintiff, in the proceedings.
(3) ORDER that the plaintiffs be granted leave to amend the statement of claim in accordance with the form of "Amended Statement of Claim" annexed to the first plaintiff's Notice of Motion filed 13 March 2014.
(4) ORDER that the Amended Statement of Claim annexed to that Notice of Motion stand as the plaintiffs' statement of claim in the proceedings.
(5) ORDER that the proceedings be dismissed.
(6) ORDER that the first plaintiff pay the defendant's costs of the proceedings (including the costs of her Notice of Motion filed 21 February 2014 and his Notice of Motion filed 13 March 2014) on the ordinary basis.
(7) RESERVE to all parties' liberty to apply (within seven days of the publication of this Judgment) for an order that that costs order be varied or discharged.
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Decision last updated: 16 July 2014
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