Estate of Guamani; Guamani v De Cruzado

[2023] NSWSC 502

Supreme Court

New South Wales

Medium Neutral Citation:

Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502

Hearing dates:

17 February 2023 (preliminary), 11 May 2023 (substantive)

Date of orders:

18 May 2023

Decision date:

18 May 2023

Jurisdiction:

Equity

Before:

Meek J

Decision:

Applicant’s notice of motion seeking security for costs dismissed

Catchwords:

PROBATE — Application by widow of the deceased for security for costs in relation to a probate dispute where deceased made a series of Wills providing substantial benefit to his sister, a nephew and niece all resident in Ecuador and including a 2018 Will post-dating the deceased’s marriage to the widow — Three days prior to his death, brought upon by respiratory failure and diffuse large B-cell lymphoma, the deceased made a Will (2021 Will) excluding those relatives and substantially benefiting the widow and her children from another marriage — Respondents challenge 2021 Will on grounds of testamentary capacity and “suspicious circumstances” bearing upon knowledge and approval — The limited evidence before the Court raises matters occasioning doubt on the grounds of challenge as to the validity of the deceased’s final Will for the purposes of assessing the prospects of success and merits of the proceedings — No dispute as to the validity of the 2018 Will — Despite the respondents being plaintiffs in the proceedings, the real issues in dispute concern the validity of the final 2021 Will on which the applicant has the legal onus of proof — Order for security for costs refused

PROBATE — Costs — Security for Costs —Respondents ordinarily resident outside Australia —No assets in Australia — Application pursuant to r 42.21 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) — Discussion of applicable principles — The same security for costs principles apply to all proceedings but their application depends upon the facts of the particular case including the peculiarities of the nature of the proceedings which are the subject of the application

PROBATE — Discussion of the nature of probate proceedings and distinctive features regarding the role of parties in probate proceedings — Consideration of such differences from ordinary civil litigation

PROBATE — Costs — Discussion of nature of costs orders in probate proceedings — Probate costs exceptions to costs following the event not confined to instances of “the testator causing or being responsible for the litigation” or “cases inviting reasonable investigation” — Costs jurisdiction and available orders in probate more flexible than the so-called “usual exceptions”

PROBATE — Costs — Security for Costs — Mechanisms in probate proceedings for achieving objectives associated with security for costs rationale without ordering security

STATUTORY CONSTRUCTION — Definition of “plaintiff” and “defendant” for the purposes of the UCPR — Those terms not relevantly defined in the UCPR nor the Dictionary to the UCPR — The terms “plaintiff” and “defendant” construed by application of provisions of s 11 Interpretation Act 1987 (NSW) that words and expressions that occur in an instrument, which includes rules of Court, have the same meanings as they have in the Civil Procedure Act 2005 (NSW)

JUDGMENTS — Enforcement of judgments in foreign jurisdiction in particular in Ecuador

Legislation Cited:

Births, Deaths and Marriages Registration Act 1995 (NSW)

Civil Procedure Act2005 (NSW)

Foreign Judgments Act 1991 (Cth)

Foreign Judgments Regulations 1992 (Cth)

Interpretation Act 1987 (NSW)

Marriage Act 1961 (Cth)

Succession Act2006 (NSW)

Trustee Act1925 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Wills, Probate and Administration Act1898 (NSW)

Cases Cited:

Application of Doolan [2023] NSWSC 320

April Fine Paper v Moore Business Systems (2009) 75 NSWLR 619; [2009] NSWSC 867

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Ball v Saint [2022] NZHC 3607

Banks v Goodfellow (1870) LR 5 QB 549

Bear v Bear; Jordan v Bear [2022] NSWSC 1687

Blashill v Chambers (1884) 14 QBD 479

Boyce v Bunce [2018] NSWSC 1924

Cassarino v Cassarino [2020] NSWSC 454

Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171

Donoghue v Commissioner of Taxation [2018] FCA 468

Dowling v St Vincent De Paul Society of Victoria Inc [2003] VSC 454

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

East Grace Corporation v Xing (No 1) [2005] FCA 219

Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786

Estate Rofe [2021] NSWSC 257

Fell v Fell (1922) 31 CLR 268; [1922] HCA 55

Fiduciary Limited v Morningstar Research Pty Ltd [2004] NSWSC 664; (2004) 208 ALR 564

Gertsch v Roberts (1993) 35 NSWLR 631

Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562

Hadid v Sabouh [2023] NSWSC 483

Hyland v Burbidge; The Estate of Charles Keith Hyland (Supreme Court (NSW), Powell J, 23 October 1992, unrep)

Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744

In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137

In the Estate of Fuld deceased; Hartley v Fuld (Attorney General intervening) [1965] P 405

Karwala v Skrzypczak; In the Estate of Ratajczak [2006] NSWSC 203

Lewis v Lewis [2021] NSWCA 168

MaatschappijVoorFondsenbezit v Shell Transport and Trading Co [1923] 2 KB 166

Mallitt v Gow [2022] NSWSC 1012

McKeown v Harris & Anor; Re Rice [2018] QSC 87

Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197

Micallef v Linney [2020] NSWSC 1457

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Newell and King v Weeks (1814) 2 Phillim 224; 161 ER 1126

Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36

Nock v Austin (1918) 25 CLR 519; [1918] HCA 73

Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89

Potts or Riddell v Reid [1943] AC 1

Public Trustee v Gittoes aka Caldar [2005] NSWSC 373

R v Forbes; Ex parte Bevan (1972) 127 CLR 1; [1972] HCA 34

Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443

Rajski v Computer Manufacture & Design Pty Ltd [1983] 2 NSWLR 122

Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206

Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040

Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813

Re Estate Pierobon, Deceased [2014] NSWSC 387

Re Estates Brooker-Pain and Soulos [2019] NSWSC 671

Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698

ReHubbard; Estate of Ross [2011] NSWSC 617; (2011) 4 ASTLR 497

Re Rosie (No 2) [2022] NSWSC 1750

Re Marriage of Brown (1991) 15 Fam LR 69 Robinson v Jones (No 3) [2015] VSC 508

Rusiti v Alkhoshaibi [2007] NSWSC 1374

Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521

Street v Luna Park Sydney Pty Ltd [2006] NSWSC 1317

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Trust Co of Australia Ltd v Perpetual Trustees WA Ltd (No P2) (1995) 36 NSWLR 654

Uptown Sydney Development Corp Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300

Willey v Synan (1935) 54 CLR 175; [1935] HCA 76

Young v Holloway [1985] P 87

Texts Cited:

Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague Judgments Convention)

Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis)

Geddes, Robert, Charles Roland and Paul Studdert, Wills, Probate Administration Law in New South Wales (1st ed, 1996, LBC Information Services)

Handler, Les & Richard Neal, Mason and Handler Succession Law and Practice New South Wales (LexisNexis)

Hastings, Roland and George Weir, Probate Law and Practice (1939, 1st ed, The Law Book Co of Australasia Pty Ltd)

Hastings, Roland and George Weir, Probate Law and Practice (1948, 2nd ed, The Law Book Co of Australasia Pty Ltd)

Herzfeld, Perry and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters)

Janes, Stephen, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters)

Learmonth, Alexander, Williams, Mortimer & Sunnucks - Executors, Administrators and Probate (21st ed, 2018, Thomson Reuters)

Lindsay J, “Parties, Property and Notice of Proceedings in Succession Law Cases” (Paper), College of Law Seminar, 20 February 2019

Lindsay J, “The ‘Why’ and ‘What’ of ‘Suspicious Circumstances’ in Probate Litigation” (Paper), Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018

Macquarie Dictionary, online ed

Maestri, Raffael, “Once in a blue moon – the curious case of security for costs in contested probate litigation Pt 1” (2019) 21(1) REP 8

Maestri, Raffael, “Once in a blue moon – the curious case of security for costs in contested probate litigation Pt 2” (2019) 21(2&3) REP 17

Maestri, Raffael, “Once in a blue moon – the curious case of security for costs in contested probate litigation Pt 3” (2019) 21(4) REP 33

Mason, Keith, “The Inherent Jurisdiction of the Court” (1983) 57 Australian Law Journal 449

Meek SC, Michael and Paul Studdert, “Grants in administration of deceased estates” (2016) 43(1&2) Australian Bar Review 115

Ritchie’s Uniform Civil Procedure NSW (LexisNexis)

Category:

Principal judgment

Parties:

Pastora Guamani (First Plaintiff / First Respondent)
Lidia Chicaiza Guamani (Second Plaintiff / Second Respondent)
Omar Ernesto Guamani Portilla (Third Plaintiff / Third Respondent)
Luz Mariel Baca Flor De Cruzado (First Defendant / Applicant)
NSW Trustee & Guardian (Second Defendant)

Representation:

Counsel:
J Brown (11 May 2023) and C Hodgson (17 February 2023) (Plaintiffs / Respondents)
A Power (First Defendant / Applicant)

Solicitors:
PB Ritz Lawyers (Plaintiffs / Respondents)
Silkman Austen Brown Lawyers (First Defendant / Applicant)

File Number(s):

2022/346362

JUDGMENT

Introduction

1. HIS HONOUR: The application before the Court raises an important but relatively rare question of principle regarding the practice of the Court in relation to whether an order for security for costs ought to be made in relation to probate proceedings.

2. The question of principle is important at least for the reason that probate proceedings have a public interest aspect to them and the prospect that a legitimate testing of the final testamentary wishes of the deceased might potentially be stymied by an interlocutory order for security for costs is a matter which requires some considered thought and examination.

3. That instances of applications for security for costs in probate proceedings are relatively rare is undoubted. What little probate caselaw and texts which address the issue of security for costs in probate proceedings comment on the paucity of instances of such orders. Indeed, one of the articles written on the issue emphasises the scarce occurrence of such orders by the idiomatic title “Once in a blue moon – the curious case of security for costs in contested probate litigation”: Raffael Maestri (2019) 21(1) REP 8; (2019) 21(2 & 3) REP 17; (2019) 21(4) REP 33 (the article being published in the bulletin across three parts).

4. It is evident that the catalyst for Mr Maestri’s article is the decision of Lindsay J in Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813 (Re Condon). Certainly, Lindsay J’s decision in Re Condon has served to provoke important and helpful discussion in the profession regarding the rationale for security for costs orders and how general security for costs principles are applied in proceedings having regard to the peculiarities of the nature of probate proceedings.

5. Current legal texts now refer to the decision of Re Condon: see, for example, GE Dal Pont, The Law of Costs (5th ed, 2021, LexisNexis) (Dal Pont) at [28.4] 1025; Les Handler & Richard Neal, Mason and Handler Succession Law and Practice New South Wales (LexisNexis) at [6089]; Ritchie’s Uniform Civil Procedure NSW (LexisNexis) at [42.21.75]; Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters) (JLS) at [COST.150] 966-967.

6. Further, there is at least one case, namely, Ball v Saint [2022] NZHC 3607 (Ball v Saint) in which a judge has considered an application for security for costs in probate proceedings and referred to the decision of Re Condon: at [15]-[16] per Robinson J.

7. Curiously, none of the caselaw or texts particularly identify the reason as to why there is such a paucity of instances in which security for costs is claimed or ordered in probate proceedings: Re Condon at [72].

8. It might in part be explicable by the fact that there are as observed by Lindsay J considerations and or mechanisms in probate proceedings for achieving objectives associated with security for costs rationales, separate from making an order for security for costs: Re Condon at [93].

9. For example, an application for security for costs might be unnecessary if the party against whom security might potentially be sought has some entitlement to a share in the deceased’s estate irrespective of the outcome, which is able to be set-off against any ultimate costs order.

10. In any event, it is not necessary to probe the reasons for the paucity of such cases in probate proceedings. That is because principles of statutory construction and a purposive approach to considering security for costs in the probate jurisdiction provide sufficiently sound bases on which the question of whether security for costs ought to be ordered on the facts of this particular case may be determined.

11. In the result, I have determined to dismiss the applicant’s notice of motion for security for costs.

Family details

12. Washington Manuel Guamani (the deceased) died in New South Wales on 6 September 2021 aged 76 years.

13. Relevantly for probate purposes, the deceased left some property in New South Wales including real property located at St Peters (the St Peters property).

14. The deceased was born in Ecuador in July 1945.

15. His parents, Juan and Maria both predeceased him.

16. He had five siblings being relevantly: Adelaida, Rosa, Pastora, Elisa and Juan.

17. Adelaida and Rosa predeceased the deceased respectively in November 2021 and November 2003.

18. The deceased had twelve nephews and nieces.

19. Relevantly, the parties to the proceedings nominally as plaintiffs are the deceased’s sister Pastora, his niece Lidia (a daughter of Adelaida) and Omar (a son of Juan) (the respondents).

20. It appears the deceased emigrated from Ecuador to Australia in about the 1970s, and for some period of time in Australia had an occupation as a bus driver.

21. There is minor dispute as to precisely when the deceased met the first defendant in the proceedings being the applicant on the application (applicant). The plaintiffs say he met her in or about 2011. The applicant asserts she met the deceased in March 2012, and they commenced a relationship in May 2012.

22. On or about 2 January 2015, the deceased married the applicant in Peru and remained married to her as at the date of his death. At that stage it appears the deceased was 69 years old, and the applicant was 44 years old. There was some inconsistency in the evidence in the proceedings regarding the applicant’s precise name. Ms Power clarified that the applicant’s given names are Luz Mariel and her surname is Baca Flor Cruzado: T 10. Nonetheless, it seems the applicant often shortens reference to her surname as simply “Baca” for convenience in Australia: T 10.

23. There is a question which is not necessary to determine on this application as to whether the marriage between the deceased and the applicant in Peru was recognised in Australia as a valid marriage pursuant to Pt VA Marriage Act 1961 (Cth).

24. The applicant was previously married and has two biological children (to her ex-husband) being Wendell aged about 29 years and Christopher aged about 21 years (also spelt “Cristopher” in some parts of the evidence).

25. Wendell and Christopher are thus the deceased’s stepchildren.

Claim for security for costs

26. By notice of motion filed on 15 December 2022, the applicant seeks security for costs for probate proceedings commenced by the plaintiffs on 16 November 2022 in the Equity Division, Probate List of this Court.

27. There is a second defendant to the probate proceedings being the NSW Trustee and Guardian (NSWTG).

28. The NSWTG is the named executor in a Will propounded by the respondents to which I refer below.

29. The NSWTG has filed a defence to the claim in the proceedings but not otherwise played any relevant part on the claim for security for costs.

30. The order for security for costs is sought pursuant to r 42.21(1)(a) Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in the amount of $90,000 inclusive of GST or such other amount as the Court sees fit.

31. The claim so framed is principally on the basis that the respondents are resident in Ecuador.

32. The notice of motion seeks related orders that in the event that the amount of security sought is ordered:

1. there be a stay of the proceedings pursuant to r 42.21(1)(a) UCPR pending the provision of such security within the period of 28 days; and

2. the proceedings be dismissed pursuant to r 42.21(3) UCPR in the event that such security is not provided within 28 days of the making of any order for security.

33. The hearing of the application was initially listed before me on 17 February 2023. Ms Power of counsel appeared for the applicant. Mr C Hodgson of counsel then appeared for the respondents.

34. The applicant relied upon two affidavits being relevantly:

1. the affidavit of Malachi Thomas Dutschke (Mr Dutschke) affirmed 15 December 2022; and

2. the affidavit of James Walter Whiley (Mr Whiley) affirmed 25 January 2023.

35. The affidavit of Mr Dutschke (who is the applicant’s solicitor) addresses how the claimed costs in respect of the application are calculated.

36. The affidavit of Mr Whiley addresses the preparation of the chronologically last Will of the deceased being a Will executed on 3 September 2021 (the 2021 Will).

37. The respondents relied upon a number of affidavits of their solicitor Phillip James Briffa (Mr Briffa) affirmed on 12 December 2022, 22 December 2022 and 25 January 2023, the Exhibit PJB-1 to the affidavit of Mr Briffa affirmed 12 December 2022, affidavits of each of the respondents dated 13 December 2022 and an affidavit of Jacqueline Guamani also affirmed 13 December 2022.

38. Following the noting of evidence, I raised with the parties the fact that the pleadings in the proceedings were incomplete. I considered that the pleadings should be completed prior to the application being determined.

39. I made directions for the applicant to file and serve any defence and any amended (pleaded) cross-claim and for the respondents to file and serve any defence to any such amended cross-claim. The matter was stood over for directions. The matter was returned to the Succession List.

40. An issue arose as to whether I had become part heard in the hearing of the matter. On 17 February 2023, apart from noting the evidence relied upon by the parties the matter was not substantively argued before me. Given the completion of the pleadings in the matter might on one view have had a significant impact on the issues in the proceedings, I considered that there was no particular necessity for me to continue to hear the matter.

41. Nonetheless, as the hearing of the application had not progressed, I directed on 5 May 2023 that the matter be listed before me on 8 May 2023 for mention. After discussion with counsel, I listed the matter for hearing on the basis that the evidence to be relied upon on the application was the evidence noted on the prior occasion with the exception that the Court would note and have regard to the further pleadings that had been filed and served since that time.

42. Mr Hodgson and Ms Power had previously provided outlines of submissions. Mr Hodgson was no longer available to complete the hearing of the application and Mr Brown appeared for the respondents.

43. On the hearing of the application, Ms Power tended an additional Will of the deceased that had been found being a Will dated 29 August 1988, prepared by Gadens Solicitors Sydney in which the deceased made provision to give his estate to his then wife Nora. The Will was marked Exhibit A1.

35. Ms Power tendered a copy of the deceased’s death certificate which I refer to below. That was marked Exhibit A2.

36. Mr Brown tendered a copy of a requisition of the Registrar in Probate to the former solicitors of the applicant being a requisition dated 14 July 2022 which requisition drew to the attention of those former solicitors the fact that a (further) probate caveat had been filed in the matter on 23 May 2022 and was currently (then) in force. That was marked Exhibit R1.

37. Mr Brown additionally read an affidavit of Amber Geake affirmed 12 December 2022 proving service of notices of proceedings on Wendell and Christopher by email on 12 December 2022 which email service upon them was acknowledged by them. He also read the affidavit of Jacqueline Gin sworn 12 December 2022 being an Affidavit of Attesting Witness of the Will described below as the “2018 Will”.

38. There was no cross-examination on any of the affidavits filed in the matter and counsel had the opportunity of making further oral submissions.

The Wills

48. In the 2021 Will, the applicant is appointed as executor and Wendell and Christopher alternate executors in the event that the applicant either failed to survive the deceased or was unable or unwilling to act. The deceased by the 2021 Will gave his interest in his furniture and household effects and motor vehicles and chattels to the applicant as well as the right of use and access to his digital assets and a right to occupy his principal place of residence being the St Peters property. There are other provisions in the 2021 Will which in certain circumstances enable the St Peters property to be sold. The deceased left the residue of his estate to the applicant.

49. The deceased on 16 November 2018 made a Will with the NSWTG (2018 Will).

50. By that Will, the deceased appointed the NSWTG as executor.

51. He gave his estate on trust to effectively divide it into ten parts one of which he left to the applicant and the remaining nine parts he gave as to three parts each to the respondents.

52. It is not in dispute that the deceased validly executed 6 Wills prior to the 2018 Will being respectively 1988, 1989, 1990, 1997, 2004 and 2005 Wills.

Estate

53. Surprisingly, there is no specific evidence adduced on the application as to the extent of the deceased’s estate. It appears at least that an asset of the deceased’s estate is the St Peters property. However, the evidence does not disclose specifically whether the property is encumbered in any way whether by mortgage or otherwise. Nor does it disclose the value of the St Peters property.

Issues arising from the pleadings

54. Following the deceased’s death, the applicant published a notice of intended application for probate of the 2021 Will. The respondents filed caveats on 21 November 2021 and 23 May 2022.

55. Initially, apart from filing a summons seeking a grant of probate in common form (rejected due to the then caveat), the applicant took no steps to progress an application for probate of the 2021 Will.

56. The respondents, as noted, on 16 November 2022, filed a statement of claim, rather than filing a further probate caveat. Because of this, at least in a formal sense, they became the plaintiffs in the proceedings rather than defendants to the dispute regarding probate.

57. The respondents propound the 2018 Will and challenge the validity of the 2021 Will on grounds that the deceased lacked testamentary capacity being not of sound mind, memory and understanding and, further, on the basis that the preparation and execution of the 2021 Will was attended by suspicious circumstances and that at the time of execution the deceased did not know and approve of its contents.

58. The invocation of “suspicious circumstances” per se is not generally regarded as a probate defence as such. Matters raised as being “suspicious circumstances” are usually viewed as being relevant, if at all, to the question of knowledge and approval: e.g. Karwala v Skrzypczak; In the Estate of Ratajczak [2006] NSWSC 203 per Windeyer J at [11] citing Isaacs J in Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 at 528.

59. Details of the respondents’ challenges to the 2021 Will based on alleged lack of testamentary capacity are particularised in paragraph 26 of the statement of claim as follows:

Invalidity of the Purported 2021 Will

26. The purported 2021 Will is not a valid testamentary instrument by reason of the fact that, at the time the deceased signed the purported 2021 Will, he was not of sound mind, memory and understanding, and lacked testamentary capacity.

Particulars

a. The purported 2021 Will was made 3 days before the deceased died.

b. At that time, the deceased was hospitalised (at Royal Prince Alfred Hospital) and receiving treatment for respiratory failure and cancer of the lymph nodes, bone marrow and spleen (namely, advanced diffuse large B-cell lymphoma) (which treatment included chemotherapy).

c. The deceased had limited life expectancy.

d. The deceased was physically frail and heavily medicated.

e. The deceased was not eating or talking for a number of months in the lead up to the execution of the purported 2021 Will.

f. The deceased demonstrated forgetfulness, confusion and disorientation for a number of months in the lead up to the execution of the purported 2021 Will.

g. The purported 2021 Will represents a significant departure from all of the deceased's earlier wills and his longstanding, and expressed, testamentary intentions.

h. The purported 2021 Will is inconsistent with:

i. The nature and quality of the deceased's relationship with the First Defendant at the time of the execution of the purported 2021 Will;

ii. The nature and quality of the deceased's relationship with Wendell and Christopher at the time of the execution of the purported 2021 Will; and

iii. The deceased's ongoing commitment, and representations, to his family in Ecuador.

i. The deceased was not capable of properly comprehending and appreciating the terms and effect of the purported 2021 Will or the legitimate claims on his estate at the time of the execution of the purported 2021 Will.

(Further particulars to be provided after lay evidence and disclosure.)

60. Details of the respondents’ challenges to the 2021 Will based on alleged suspicious circumstances and lack of knowledge and approval are particularised in paragraph 27 of the statement of claim as follows:

27. Further, or in the alternative to paragraph 26 above, the purported 2021 Will is not a valid testamentary instrument by reason of the fact that the preparation and execution of the purported 2021 Will is attended by suspicious circumstances and, at the time the deceased signed the purported 2021 Will, he did not know and approve of its contents.

Particulars

a. The Plaintiffs repeat the particulars to paragraph 26 above.

b. The purported 2021 Will was prepared by a firm of solicitors (Hall & Willcox), which firm was not known to, or used by, the deceased historically.

c. The deceased historically retained the NSW Trustee & Guardian in respect of his Will-making and the NSW Trustee & Guardian prepared the six (6) prior known Wills of the deceased between 1989 and 2018.

d. Hall & Willcox was retained in or about July 2021 on a pro-bono basis through a referral scheme with the Marrickville Legal Centre.

e. The First Defendant initiated contact with the Marrickville Legal Centre in or about June 2021, and engaged in all communications with the Marrickville Legal Centre.

f. The First Defendant was present at, and involved in, all meetings with Hall & Willcox vis-a-vis the purported 2021 Will, including the occasion on which the purported 2021 Will was executed.

g. In this way, the First Defendant, who receives a substantial benefit under the purported 2021 Will, and shares the deceased's estate thereunder only with her two (2) biological children, Wendell and Christopher, was heavily involved in procuring the purported 2021 Will.

h. The purported 2021 Will contains factual errors, including by referring to Wendell and Christopher as the deceased's "children".

i. Hall & Willcox were not provided with, and did not discuss with the deceased, any instructions regarding the nature and extent of his estate.

j. Hall & Willcox were not provided with, and did not discuss with the deceased, any of the deceased's prior Wills, or the departures therefrom in the purported 2021 Will.

k. The attesting witnesses to the purported 2021 Will were not legally trained.

I. The deceased had limited English proficiency and usually spoke fluent Spanish.

m. The attesting witnesses to the purported 2021 Will did not, to the knowledge of the Plaintiffs, speak Spanish.

n. For a number of months in the lead up to the execution of the purported 2021 Will, the First Defendant limited communications between the deceased and the Plaintiffs (and other family members overseas), and managed/directed all communications through her.

(Further particulars to be provided after lay evidence and disclosure.)

61. On 14 March 2023, the applicant filed a defence to the statement of claim relevantly pleading that the 2021 Will was validly executed and disputing that the deceased lacked testamentary capacity for the Will.

62. Further, on 14 March 2023, the applicant filed a pleaded cross-claim propounding (for the first time) the 2021 Will. The applicant had previously, on 21 November 2022, filed a form of cross-summons in which the applicant sought a family provision order for provision out of the deceased’s estate pursuant to Ch 3 Succession Act2006 (NSW) (Succession Act) premised on the event that the Court might find that the 2021 Will was not a valid Will.

63. That cross-claim additionally sought an order extending the time for the applicant to make a family provision claim and an order designating (unidentified) property as notional estate.

64. The reason why the applicant had not prior to the initial listing of the matter before me on 17 February 2023 sought any positive relief propounding the 2021 Will is not evident from the evidence.

65. The more recently filed pleaded cross-claim apart from propounding the 2021 Will retains the claim for relief for a family provision order (in the event the Court were to find against the 2021 Will).

66. On 31 March 2023, the respondents filed a defence to the amended pleaded cross-claim. That defence effectively picks up the challenges to the 2021 Will that had been made in the statement of claim.

Evidence to date

67. The evidence adduced on the application was relevant both to the issues regarding security for costs per se and in particular the issues regarding the contest over the 2021 Will.

Mr Whiley’s affidavit

68. It is common practice in probate proceedings for a direction to be made by the Court for a solicitor who has attended upon the deceased to make a Will to outline in an affidavit the solicitor’s involvement leading to the making and execution of the Will.

69. It is clear from Mr Whiley’s affidavit that the deceased was a pro bono client of Mr Whiley’s firm. He had been introduced to the firm by a referral from Marrickville Legal Centre.

70. Without attending to be exhaustive, I note that Whiley’s evidence reveals the following details.

71. Mr Whiley before formally meeting the deceased relied upon a colleague (Ms Bladen) to contact the applicant to establish whether the deceased had capacity to provide instructions and sign documents, and Mr Whiley understood from Ms Bladen’s response (following a call with the applicant) that the deceased would have such capacity.

72. Due to COVID-19 restrictions Mr Whiley did not physically meet with the deceased but had a virtual ZOOM meeting with both the deceased and the applicant on 21 July 2021.

73. Mr Whiley also arranged for a colleague, Ms Gabriela Manzano (Ms Manzano) (said to be a native Spanish speaker), to attend the meeting to help translate if required.

74. Mr Whiley noticed that the deceased was an older man and appeared visibly unwell.

75. Mr Whiley indicates that he received instructions from the deceased in that meeting and outlines a brief discussion with the deceased.

76. On or about 2 August 2021, Mr Whiley arranged for Ms Bladen to prepare a draft Will. On 3 August 2021, he reviewed that draft and what he describes as other succession planning documents to be sent to the deceased.

77. On 4 August 2021, Mr Whiley was copied into an email sent by Ms Manzano to the deceased and the applicant attaching a number of documents including draft Wills for them.

78. On 24 August 2021, Mr Whiley discussed with Ms Manzano an email she had received from the applicant.

79. On 29 August 2021, Mr Whiley discussed with Ms Manzano an email she had received from the applicant regarding a deterioration in the deceased’s health and he asked her to finalise the draft 2021 Will.

80. On 30 August 2021, Ms Manzano sent to the applicant an email with a number of documents including the draft version of Wills for both her and the deceased. A form of “default clause” had apparently been removed from the draft.

81. The email states in part:

In relation to your query whether a lawyer can attend the hospital to witness Washington's documents, I am afraid we are not able to do this given lockdown and the risks to our staff in attending hospital, as we have nobody who is fully vaccinated in our team. If the hospital is also not allowing visitors, they are unlikely to allow a lawyer to visit.

82. On 1 September 2021, Mr Whiley indicates that he was advised by Ms Manzano that a physical copy of the final version of the 2021 Will had been sent to the deceased’s hospital as requested by the applicant.

83. On the same day, Mr Whiley had a telephone call with the person he describes as the deceased’s doctor at the hospital, Dr Edward Abadir (Dr Abadir).

84. The conversation is in the following terms:

Me:   “I understand you tried calling to let us know that you don’t think Mr Guamani has capacity to sign his Will?"

Dr Abadir:    “Yes, but it’s complicated. Mr Guamani will go in and out of capacity based on the treatment we give him. If he regains capacity, we will try to have him sign the Will”

Me:    “Ok, thank you. Please let us know either directly or through Luz if that is the case, and Mr Guamani has the capacity to sign his Will."

85. On 2 September 2021, Mr Whiley states that he discussed with Ms Manzano a call that she had with the applicant who apparently confirmed both Dr Thomas Buss and Dr Abadir had formed the view that the deceased had capacity to sign the 2021 Will. An email sent by Ms Manzano to Mr Whiley on that day refers to a telephone call she had with the applicant lasting apparently for some nine minutes. The email simply states: “Luz said that the social worker from the Hospital will arrange 2 witnesses tomorrow at 11 am, two doctors have told Luz that Washington has capacity to sign his Will. Luz has the attached letter and Will printed already.”

86. On 3 September 2021, Mr Whiley attended a virtual meeting via ZOOM (due to the then COVID-19 restrictions) with the deceased, the applicant and persons who he describes as “two independent witnesses” being Ms Sandra Mitchell (Ms Mitchell) and Ms Tania Sheldrick (Ms Sheldrick) who were present with the deceased.

87. Mr Whiley states that he asked whether one of the deceased’s doctors was also present to act as a witness and provide confirmation that he had “legal capacity”. He was advised that they were not available but that the deceased’s capacity “had been confirmed again with the doctors before the meeting”.

88. Mr Whiley then states that he carefully took the deceased through the clauses of the Will to ensure that he understood them and they reflected his instructions, and that he was mindful of ascertaining that the deceased fully understood the nature and effect of the Will due to any language barriers. He sets out a version of a conversation that he had with the deceased which he described as being “with the assistance of the first defendant to provide translation as required”.

89. Finally, Mr Whiley states that he observed the deceased sign the 2021 Will in the presence of Ms Mitchell and Ms Sheldrick who also signed as witnesses.

90. His affidavit then attaches an email that he sent to Ms Manzano which Mr Whiley describes as effectively being a form of file note.

91. The email is in the following terms:

JW explaining docs to Washington after checking that he had legal capacity with doctor. Washington confirming that he was happy with and understood docs then executing:

1. Will and 2 independent witnesses executing - Luz will retain original.

2. POA and AEG with JW as witness via Zoom noting Washington had already signed them so he resigned them in front of JW with blue pen noting JW advised it would be better to sign new docs, but they did not have copies, so better than nothing. Luz also signing in front of JW noting she signed where JW was meant to sign by accident on POA so will cross out. Agreeing to send originals to JW home address and JW providing for him to witness and return to their home address.

3. Luz will arrange a time to execute her docs another time.

Lidia’s affidavit

92. Lidia’s affidavit indicates that she only ever spoke with the deceased in Spanish.

93. She sets out details of her lengthy relationship with the deceased. She indicates that after the deceased and the applicant married in Peru, the deceased indicated to her that the applicant wished to live in Lima, but he did not wish to live there and wanted to live in Quito, and he proposed to stay in Quito and visit the applicant in Lima.

94. She indicates that in 2018, the deceased spoke with her, and she asserts he told her that there was no stability in their relationship, and he would have liked to have lived in Quito but instead the applicant was preparing paperwork to go to Australia. She notes that the deceased then moved to Australia with the applicant and her two sons in 2018.

95. The affidavit addresses details of the deceased’s relationship with Christopher and his plans to return to Ecuador (where Lidia lives).

96. The affidavit, in particular, sets out details of Lidia’s correspondence principally with the applicant from 15 May 2021 via text and voice messages on WhatsApp.

97. Lidia indicates that in or about July 2021, she spoke with the deceased on WhatsApp, and they had a conversation in which she told him that she had asked the applicant to help her get a visa so that she could come to Australia to visit and spend some time with the deceased and that the applicant had told her that the deceased did not want her to come. Lidia questioned this and she says the deceased responded to the effect of (English translation): “Why wouldn't I want you to come? I didn't even know you asked”.

98. Lidia indicates that after that time when she asked the applicant about the deceased’s health she did not answer, and she relied upon her cousins Jacqueline and Miriam to keep her updated regarding the deceased’s health. She finally refers to a text message which the applicant sent to her on 5 September 2021 through WhatsApp, noting that the deceased was still in hospital and that “He is delicate. The doctors are helping him by providing the oxygen he needs. In general, they tell me he is somewhat stable”. She says that is the last message she received from the applicant.

Pastora’s affidavit

99. Pastora likewise cannot speak English and she only ever communicated with the deceased in Spanish.

100. In her affidavit, she sets out details of her relationship with the deceased. She indicates that in August 2018, she had a conversation in person with the deceased in which he indicated that he was going to take the applicant and her sons to Australia and then in six months he would return.

101. The last time she spoke with the deceased was in May 2021, at which time the deceased relevantly expressed to her that he hoped that the (COVID-19) pandemic would be over soon so that he could come back to Ecuador. She indicates that until May 2021, she was not aware of any health issues that the deceased had apart from some thyroid problems which he spoke with her about.

Omar’s affidavit

102. Omar in his affidavit details his relationship with the deceased and the support he received from the deceased during his lifetime.

103. He states that in or about November 2019, he spoke with the deceased in which he says the deceased indicated that he would be coming back from Australia (to Ecuador) once paperwork was done for the applicant and her children to be Australian residents and that he indicated that he would sell his home in Australia and use part of the money as a down payment for an apartment for them to live and that they could finish off paying off the apartment and then he would bring his money to Ecuador because that was where he wanted to live until he died. He indicates that the deceased told him that he had already bought a one-way plane ticket (i.e. to Ecuador) and he was coming on 1 April 2020.

104. Omar further spoke with the deceased in mid-2020 indicating that the deceased told him that he would effectively come back to Ecuador when the COVID-19 emergency allowed it and once there were flights to Ecuador.

105. In May 2021, Omar had a conversation with the deceased in which the deceased told him that he had a problem with his eye, and he was going to see a doctor but apart from that he was fine.

106. It appears that after that time Omar’s cousin Miriam informed him that the deceased had lung cancer and needed chemotherapy.

107. Omar also in the affidavit addresses some details regarding the deceased’s relationship with Christopher.

Jacqueline’s affidavit

108. Jacqueline is also a niece of the deceased and lives in the United States of America.

109. Her affidavit addresses the deceased’s proficiency in English. She indicates that she is fluent in English and Spanish but only ever spoke with the deceased in Spanish because his English proficiency was very basic.

110. Her affidavit addresses the deceased’s plans to return to Ecuador by reference to a conversation she had with the deceased in December 2018 and also in November 2019 over WhatsApp. She last had phone communication with the deceased in February 2021. She refers to contact with the applicant on 19 May 2021 in which the applicant made her aware that the deceased had been sick and in hospital. She indicates that she had frequent communication with the applicant between May and September 2021. The affidavit sets out in some detail the voice and text messages with the applicant on WhatsApp during that period.

Mr Briffa’s affidavits

111. The evidence of Mr Briffa in part addresses the financial circumstances of the applicants.

112. He indicates that none of the applicants have any assets in New South Wales. Each of them is ordinarily resident in Ecuador.

113. Pastora has minimal assets in Ecuador comprising several bank accounts and fifteen head of cattle totalling US$8,200. She has a property held in the name of her parents said to be worth approximately US$60,000.

114. Lidia has a bank account in Ecuador with a balance of US$1,000 and lives with her husband in a property owned by him in his sole name worth about US$65,000.

115. Omar has assets in Ecuador totalling approximately US$92,500 comprised principally of a property worth US$50,000, a pickup truck worth US$30,000 and other assets of minor value including a couple of bank accounts.

116. Mr Briffa corresponded with Mr Dutschke regarding security for costs. The correspondence refers to the relative poverty of his clients and notes that the circumstances in which the 2021 Will was prepared invites suspicion indicating that the circumstances are such as to indicate that if the plaintiffs were ultimately unsuccessful in proceedings an order for payment of their costs out of the estate could be fairly anticipated. In particular, the correspondence suggests that an order for security (I assume in the amount claimed by the applicant) would potentially stifle the proceedings.

117. On 6 December 2021, Mr Briffa corresponded with Mr Dutschke seeking various details regarding the circumstances of the making of the 2021 Will. Mr Dutschke responded on 17 December 2021 providing details. On 23 December 2021, Mr Briffa sought some further details, and his letter was responded to by Mr Dutschke on 20 January 2022. That letter attached copies of correspondence between the deceased and Hall & Wilcox (Mr Whiley’s firm).

Principles

Purpose and rationale for security for costs

118. Generally speaking, the purpose of an order for security for costs is to protect a defending party to proceedings (however described) against the prospect that any order the Court might make for costs of the proceedings may be frustrated by a plaintiff lacking financial resources to meet a costs order: Dal Pont at [28.1] 1024.

119. Sometimes, the nature of the order has been described in terms of the Court regulating abuse of its own processes by preventing impecunious persons from litigating without responsibility: Re Marriage of Brown (1991) 15 Fam LR 69 at 73 per Butler J.

120. At least one of the rationales for an order for security for costs is guarding against the possibility that a party may, prior to commencing litigation, divest itself of funds or be funded by a third party or otherwise order its affairs to potentially secure the benefit of a judgment in its favour without being at risk of paying costs in the event of failure: Dal Pont at [28.2] 1025.

121. Viewed that way, one might see some similarities with the jurisdiction of Courts to make freezing orders. However, that jurisdiction (and orders made pursuant thereto), whilst it might in some instances have the practical effect of guarding against the possibility that final orders made by the Court may be frustrated by a lack of assets, is exercised on a distinctly separate ground and rationale.

122. The power to order security for costs has been described as essentially an exercise in risk management as the Court balances the interests of the parties having regard to their legitimate interests both as applicant and respondent: Dal Pont at [28.1] 1024 citing observations of French J (as his Honour then was) in East Grace Corporation v Xing (No 1) [2005] FCA 219 at [6] (see also Re Condon at [82]-[84]).

Sources of jurisdiction to order security for costs

123. The Court has an inherent jurisdiction in relation to security for costs: Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443 at 447-448 per Holland J (affirmed on appeal: [1983] 2 NSWLR 122). The jurisdiction is inherent in the sense of being a power that the Court has simply because it is a Court of a particular description: see e.g. R v Forbes; Ex parte Bevan (1972) 127 CLR 1; [1972] HCA 34 at 7 per Menzies J (Barwick CJ, Stephen and Walsh JJ agreeing); Keith Mason, “The Inherent Jurisdiction of the Court” (1983) 57 Australian Law Journal 449 at 458.

124. Further, there is jurisdiction to order security for costs pursuant to the Court rules, in particular, r 42.21 UCPR.

125. The application for security for costs was principally argued by reference to r 42.21 UCPR rather than the Court’s inherent jurisdiction. I therefore deal with the matter by reference to r 42.21 UCPR.

126. The Court’s jurisdiction to dismiss proceedings if security for costs is not provided is not confined to the provisions of r 42.21(3) UCPR: Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206 at [3] per Brereton JA.

Purposive approach to construing provisions for security

127. The specific power under r 42.21 relied upon in the application is in terms that if it appears to the Court on the application of a defendant that a plaintiff is ordinarily resident outside Australia, the Court may order the plaintiff to give such security as the Court thinks, in such manner as the Court directs, for the defendant’s costs of the proceedings, and the proceedings may be stayed until the security is given.

128. There are accepted principles regarding statutory construction of such provisions. I addressed and adhere to what I stated regarding the principles relevant to approaching the task of statutory construction in Application of Doolan [2023] NSWSC 320 at [335]-[342].

129. Part of those accepted principles involves having regard to what statutory provisions direct or provide as to how other statutory provisions should be construed.

130. A rule of Court is a type of statutory rule for the purposes of the Interpretation Act 1987 (NSW) (Interpretation Act) s 21(1).

131. In construing a rule of Court such as r 42.21, it is necessary to have regard to the purpose or object underlying the provision so as to adopt a construction which would promote that purpose or object rather than a construction which would not: Interpretation Act ss 21(1), 33.

132. In addition, the Court must seek to give effect to and best advance the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in any proceedings when it interprets and exercises any power given to it by the UCPR: ss 56(1), (2), 57(2) Civil Procedure Act2005 (NSW) (CPA).

133. To further the overriding purpose, Court proceedings are to be managed having regard to specified objects being the just determination and timely disposal of the proceedings, the efficient disposal of the business of the Court and the efficient use of available judicial and administrative resources: s 57 CPA.

134. The Court, in deciding whether to make any order for the management of the proceedings, must seek to act in accordance with the dictates of justice: s 58(1)(a) CPA.

135. For the purpose of determining what are the dictates of justice in a particular case, the Court must have regard to the provisions of ss 56 and 57 CPA: s 58(2)(a) CPA.

136. Further, the Court may have regard to various other specified matters including the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction: s 58(2)(b) CPA.

137. It cannot be seriously doubted that a potential order directing a party to take a step to make provision for security for costs is one of the types of orders that may be described as an order for the determination of the real issues in the proceedings including the conduct of the proceedings: s 61(2)(a) CPA, rr 2.1, 2.3 UCPR.

138. The specific matter which enlivens the power of the Court to order security which is relied upon by the applicant in these proceedings is a finding that the respondents are relevantly plaintiffs and ordinarily resident outside Australia: r 42.21(1)(a) UCPR.

139. If that finding is made, in determining whether it is appropriate to make such an order for security for costs the Court may have regard to 14 enumerated matters and such other matters as it considers relevant: r 42.21(1A) UCPR.

140. Such statutory provisions where a Court is permitted to make a decision in relation to a matter and further permitted to have regard to certain criteria are relatively common.

141. As a matter of construction, it may be noted that r 42.21(1A) does not:

1. require that all or any of such matters must be taken into account;

2. prioritise the list of matters that may be taken into account;

3. specify any particular weight to be given to any such matter; nor

4. direct or mandate that any of the matters listed will necessarily be of decisive significance in determining the application for security: see the comments of Hallen J in relation to the analysis of statutory provisions of a similar structure in the context of family provision proceedings in Mallitt v Gow [2022] NSWSC 1012 (Mallitt v Gow) at [222]-[224].

142. The fourteen matters in r 42.21(1A) are not necessarily discrete and self-evidently there may in any given case be a degree of crossover of factual material between those matters in the Court’s consideration of a security for costs application.

143. Ultimately, it will be a matter for the Court in any given case to determine the weight to be accorded to those considerations, which will necessarily depend upon the facts of the particular case in question: see e.g. Hadid v Sabouh [2023] NSWSC 483 at [94] citing (in the realm of administrative law) Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 41 per Mason J (as his Honour then was), and (in family provision proceedings comments made on the operation of s 60(2) Succession Act and the scheme of that legislation) Mallitt v Gow at [222]-[224] per Hallen J.

144. It can readily be seen that whilst the fact that a plaintiff resides outside the jurisdiction is technically sufficient to enliven the jurisdiction to order security, the relevant considerations that might bear upon whether any such order is made are potentially numerous and not limited to those matters referred to in r 42.21(1A) UCPR.

145. Of some significance is the fact that if a plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity: r 42.21(2) UCPR.

The purposive nature of the probate jurisdiction

146. Application of the Court’s overriding purpose and objects in civil proceedings is to be understood having regard to the nature of the Court’s jurisdiction in the proceedings, whether that be inherent, statutory or pursuant to the general law: Re Rosie (No 2) [2022] NSWSC 1750 (Re Rosie (No 2)) at [144].

147. Thus, when it comes to understanding how a particular procedural rule (in this case a rule addressing security for costs) is to be construed, exercised and applied, a significant consideration is the juristic nature of the proceedings in which the Court is asked to make the order. That includes an understanding of the rules of substantive law that are applicable to that jurisdiction. Examples of this include how the Court approaches questions of joinder of parties in its parens patriae jurisdiction (Re Rosie (No 2) at [128]-[258]) and security for costs in family provision proceedings: Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521.

148. The purposive nature of the probate jurisdiction has been described in various cases and extrajudicial writings.

149. The former registrar in probate, Paul Studdert and I address this in part in an article: see Michael Meek SC and Paul Studdert, “Grants in administration of deceased estates” (2016) 43(1&2) Australian Bar Review 115. We stated (omitting footnotes) at 115-116:

The central ideal which underlies the court’s probate jurisdiction is the notion of an autonomous individual, with property (an estate) to dispose of, living and dying in community, and the appropriate and efficacious transmission of such property.

Grants of probate or administration reflect this in a number of ways. It suffices to mention three such ways.

First, the seminal test for testamentary capacity which is fundamental to a grant of probate of a will being issued is essentially linked to an individual testator’s capacity to understand: what property that individual has; the means by which such property is disposed of on death (a will); the claims that persons in close relationship with the testator (whom the community might expect) to have on his bounty, and the ability of that individual to appropriately discriminate between such claims.

Second, the notion of the property of an individual who dies intestate (without a will) being disposed of in community underpins the statutory regime for those who are to inherit on intestacy. The intestacy provisions in this respect create a hierarchy of persons, family relations, who form the deceased’s community. Ultimately, if there are no such persons the deceased’s estate is distributed to the Crown (bona vacantia) — reflective that the community or society as a whole might benefit from the deceased’s property.

Third, the processes for a party to apply for probate and for the Supreme Court to make a determination about a type of grant of probate or grant of administration all come back to the notion of a individual with property dying in community and the appropriate and efficacious transmission of such property. Thus, the court in issuing a grant of probate or administration must be satisfied of the fact of (a) death, (b) property being left within the jurisdiction and (c) appropriate notification to persons who are specified either by the testator (beneficiaries) or otherwise as expected by legislation (such as the intestacy provisions) or the court to have a material interest in the court’s determination of the orderly collection, winding up and eventual dispersal of the deceased estate.

A grant of probate or administration in that respect serves the purpose of being an appropriate authority from the court confirming or conferring title to deal with the deceased’s property, allowing the executor or administrator to get in the deceased’s property, deal in an orderly way with claims of creditors or other persons upon the property and finally distribute the property to those found to be entitled — usually pursuant to the will, on intestacy or by force of a family provision order.

What then is a grant of probate or administration? It is an order in the form of a grant made by the Supreme Court that gives the executor or administrator authority to represent the estate, to collect the assets of the estate, pay all proper debts, funeral and testamentary expenses and distribute the estate to those who are beneficiaries. The grant of probate or administration also provides someone who is accountable for the administration of the estate.

150. In Re Condon, Lindsay J referred to the nature of probate proceedings in the following terms (at [88]-[90]):

88. The purpose of probate proceedings is generally to advance the due and proper administration of a particular deceased estate, having regard to any duly expressed testamentary intentions of the deceased, and the respective interests of parties beneficially entitled to the estate; the task of the Court is generally to carry out a testator’s testamentary intentions, and to see that beneficiaries get what is due to them: In the goods of William Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192; Hookway v Hookway [2017] TASFC 4 at [9] and [69].

89. In the paradigm case (a model to which the current proceedings conform despite the plaintiff’s alternative case based upon an allegation of a declaration of trust), an essential feature of probate proceedings is that they concern the management of property in a court-supervised process designed to effect an orderly transfer of property from a deceased person (whose formally expressed intentions, if any, are paramount) to one or more beneficiaries in circumstances in which: (a) the deceased person is, by definition, absent; and (b) one or more beneficiaries may also be absent or under a legal disability.

90. Because the subject matter of the proceedings is succession to property from a deceased estate, a special public interest element attends the proceedings. By nature, property rights generally, notionally operate “against the whole world”, not merely as between a transferor and transferee. Where, as in a probate case, the transferor is incapacitated by death and interested persons are dependent upon findings of the Court in identification and enforcement of his or her intentions, the public has a particular interest (beyond the interests of parties in ordinary adversarial proceedings) in the integrity of the Court’s processes.

151. Understanding the purposive nature of the probate jurisdiction is enhanced by contrasting it with other cognate jurisdictions of the Supreme Court such as the protective jurisdiction (dealing with property and care of those who cannot care for themselves) and the family provision jurisdiction (dealing with a statutory jurisdiction to make provision out of the estate of a deceased person).

152. Lindsay J, writing extrajudicially in “Parties, Property and Notice of Proceedings in Succession Law Cases” (Paper), College of Law Seminar, 20 February 2019, has helpfully summarised the purposive natures of the protective jurisdiction and the family provision jurisdiction in the following terms:

26. The protective jurisdiction exists for the purpose of taking care of those who cannot take care of themselves: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259. The Court focuses, almost single-mindedly, upon the welfare and interests of a person incapable of managing his or her own affairs, testing everything against whether what is to be done or not done is or is not in the interests, and for the benefit, of the person in need of protection, taking a broad view of what may benefit that person, but generally subordinating all other interests to his or hers.

…

28 The family provision jurisdiction, as an adjunct to the probate jurisdiction, looks to the due and proper administration of a particular deceased estate, endeavouring, without undue cost or delay, to order that provision be made for eligible applicants (for relief out of a deceased estate or notional estate) in whose favour an order for provision “ought“ to be made.

Characteristics of the probate jurisdiction

153. There are particular characteristics of the probate jurisdiction which differ in varying degrees from other jurisdictions which the Court exercises. The following substantive and procedural aspects of the probate jurisdiction suffice to demonstrate particular ways in which the jurisdiction differs from other civil jurisdictions:

1. In probate proceedings, 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 (Re Dowling) at [23] per Young AJ (as his Honour then was).

2. Probate litigation is “interest litigation” in the sense that one must have an identifiable interest in the outcome of the proceedings in order to be a party to them: Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 (Brooker-Pain) at [60(b)] per Lindsay J citing inter aliaGertsch v Roberts (1993) 35 NSWLR 631 at 634B-C per Powell J (as his Honour then was).

3. A person will have a sufficient interest in probate proceedings if he or she has a right “which will be affected by the grant”: Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 (Nobarani v Mariconte) at [49] per Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ citing In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137 at 145 per Philp J (Webb CJ and Mansfield J agreeing). For example, a share of personal property and jewellery or other rights of low monetary value suffice to constitute an interest: Nobarani v Mariconte at [49].

4. Probate proceedings involve a broader understanding of the concept of “parties” than applies in much other civil proceedings. Specifically, contested probate proceedings normally result in an order in solemn form which operates in rem binding the whole world. A person interested in the outcome of probate proceedings may be bound by the outcome even though they are not a party to the proceedings, if he or she is conusant of or has notice of the proceedings and a right or reasonable opportunity to intervene: Brooker-Pain at [60(d)]; Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89 at 158-159 per Kitto J (Menzies and Windeyer JJ agreeing); Re Dowling at [24] citing Newell and King v Weeks (1814) 2 Phillim 224; 161 ER 1126; Young v Holloway [1985] P 87; McKeown v Harris & Anor; Re Rice [2018] QSC 87 at [13] per Crow J.

5. Probate pleadings are generally action-based, “issue pleadings” as distinct from the type of narrative pleadings of material facts in civil litigation: Brooker-Pain at [60(j)]. Thus, probate pleadings typically identify grounds for impugning a Will such as “lack of testamentary capacity” and “lack of knowledge and approval” and detail of such allegations is recorded in particulars of the relevant grounds.

6. In probate, there is no operation for default judgment: Re Dowling at [25].

7. In probate, a plaintiff is not generally entitled to relief against a defendant merely because the defendant has filed a submitting appearance: e.g. Trust Co of Australia Ltd v Perpetual Trustees WA Ltd (No P2) (1995) 36 NSWLR 654 at 660C-E per Young J (as his Honour then was).

8. In probate, where the Court is asked to pass over a Will there must be appropriate evidence to do so and relevant to the Court’s consideration as to whether it will do so or not is whether the parties who have proposed the resolution are the only interested parties or whether the Court considers that notice should be given to other interested parties or other interested parties should be given an opportunity to be heard: Cassarino v Cassarino [2020] NSWSC 454 at [16], [21] per Hallen J.

9. In probate, public interest considerations modify the ordinary rules of privilege such that no form of privilege necessarily attaches to evidence about the circumstances in which a Will has been executed: Brooker-Pain at [60(f)] citing In the Estate of Fuld deceased; Hartley v Fuld (Attorney General intervening) [1965] P 405 at 409-411 per Scarman J (as his Lordship then was); Re Estate Pierobon, Deceased [2014] NSWSC 387; Boyce v Bunce [2018] NSWSC 1924 at [145] ff.

10. In probate proceedings, the outcome of a grant of probate or letters of administration is not merely an order of the Court but also an instrument of title to property: Brooker-Pain [60(a)]; Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [228]-[233] and [275]-[283].

11. Because a grant of probate or administration is a public act, the Court will not make an order for a grant based simply on the consent of the parties: e.g. Bear v Bear; Jordan v Bear [2022] NSWSC 1687 at [111];

12. In probate, consent orders are only made after a judge has received evidence tending to satisfy him or her that such an in rem decision should be made: Re Dowling at [25].

13. New South Wales is a “grant-title” jurisdiction and thus competing claimants for probate who are putative executors are not relevantly trustees for the purposes of seeking judicial advice from the Court pursuant to ss 5, 63 Trustee Act1925 (NSW) (Trustee Act): ReHubbard; Estate of Ross [2011] NSWSC 617; (2011) 4 ASTLR 497 at [4] per Windeyer AJ (as his Honour then was).

14. Even in the case of an executor who has obtained a grant of probate, the statutory power of an executor to compromise proceedings does not generally extend to allow a compromise of probate proceedings which determine the title of the executor: s 49(1)(d) Trustee Act; see e.g. Dowling v St Vincent De Paul Society of Victoria Inc [2003] VSC 454 at [21] per Nettle J; Robinson v Jones (No 3) [2015] VSC 508.

The characterisation of a plaintiff in probate proceedings

154. The characterisation of a party as a plaintiff in probate proceedings is addressed as a matter of substance. In particular, when dealing with applications for security for costs, the Court is concerned, not so much with a party’s place on the record as with the true substance of the claim, the subject of the litigation and the parties’ relationship to that claim: Hyland v Burbidge; The Estate of Charles Keith Hyland (Supreme Court (NSW), Powell J, 23 October 1992, unrep) (Hyland v Burbidge) at 29 citing Willey v Synan (1935) 54 CLR 175; [1935] HCA 76 (Willey v Synan) at 184-185 per Dixon J (as his Honour then was), with whom Rich J agreed; Re Condon at [72].

155. There are numerous cases which address the question of characterisation of a party as a plaintiff in proceedings. The decision of the High Court in Willey v Synan, cited by the parties, illustrates the approach taken by Courts.

156. In Willeyv Synan, the plaintiff was a member of a crew of a ship travelling from New Zealand to Melbourne. The plaintiff claimed that he found onboard the ship English silver coins of a significant value. On arrival of the ship at Melbourne, customs department officials took possession of the coins. The plaintiff made a claim for the coins and the Collector of Customs for the State of Victoria pursuant to the provisions of the Customs Act sent a notice to the plaintiff requiring the plaintiff to take action against the Collector of Customs for recovery of the coins within a certain period of time failing which the coins would be “deemed to be condemned without any further proceedings”. It was in the above context that the plaintiff commenced an action in the High Court against the Collector of Customs claiming the return to him of the coins and damages for unlawful detention. At first instance, Starke J made an order for security for costs. The plaintiff appealed that order. The Court hearing the appeal (Latham CJ and Rich, Dixon and McTiernan JJ) allowed the appeal.

157. Dixon J stated at 184 as follows:

The principle is that a party to judicial proceedings, who resides beyond the jurisdiction, should not be required to give security for costs unless, however the parties are arranged upon the record, he is the person invoking or resorting to the jurisdiction for the purpose of establishing rights or obtaining relief. If he does avail himself of the remedies the jurisdiction provides in order to obtain affirmative relief or redress, he may be ordered to give security, although he becomes a defendant in the action.

158. His Honour further cited the decision of Scrutton LJ in Maatschappij Voor Fondsenbezit v Shell Transport and Trading Co [1923] 2 KB 166 (Maatschappij) to the effect that the (relevant) security is not ordered where the person against whom security is sought is really defending himself against attack, even if he be nominally a plaintiff, but is really defending himself (in Maatschappij, the plaintiff was defending himself against the defendants’ previous action against him): 184-185.

159. Dixon J observed that the application of the principle to the facts of Willeyv Synan was difficult because of the way the proceedings emerged but, nonetheless, considered that the solution to the difficulty lay in a consideration of the effect produced by the provisions of the Customs Act. His Honour, having analysed those provisions, determined that the Collector of Customs was the “actor” in the proceedings by reason of the fact that the notice issued by the Collector of Customs was a type of statutory substitute for judicial proceedings by the Crown against the goods (the coins). Its effect was to cast the onus of taking proceedings upon the owner or supposed owner: 185-186. His Honour observed that the statutory provisions in effect enabled the officers of the Crown to take the preliminary step of sending simple notices out-of-Court such that it was for the claimant to either abandon the claim or issue a process to protect his supposed ownership. His Honour considered that, in substance, the claimant was not the “attacker, actor or person seeking redress”: at 186.

160. Rich J agreed with the judgment of Dixon J: at 181. Latham CJ considered that the Collector of Customs had really initiated the legal process by giving the notice: at 180. McTiernan J likewise considered that the action of the appellant was in response to a notice served on him and was “truly instituted by way of defence” to the claim by the Collector of Customs for the condemnation of the appellant’s goods: at 187.

Distinctive features regarding the role of parties in probate proceedings

161. It has been observed that proceedings for admission of a Will to probate traditionally involve a unique combination of principles relating to the legal onus of proof and shifting evidentiary onus arising from the “presumptions” of fact associated with procedural steps customarily taken in the process of execution of a formal Will: Brooker-Pain at [63].

162. The particular operation of probate proceedings has been remarked upon in many cases. In the early 20^th century, Sir Isaac Isaacs delivered two judgments which stand to this day as valuable practical advice to the legal profession on aspects of probate litigation.

163. In December 1922, in the seminal decision of Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 (Fell v Fell) at 273-276, his Honour summarised as a guide to construction ten principles said to be incontestable. Those principles have been variously cited and applied in many decisions.

164. Relevantly, approximately eighteen months later in June 1924, in the decision Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 (Bailey v Bailey) at 570-572, his Honour (with whom Gavan Duffy and Rich JJ agreed) prepared a collection of twelve working principles in respect of legal and evidential burdens of proof, evidentiary presumptions and judicial fact-finding in probate proceedings drawn from cases of the highest authority. Those principles are as follows (omitting footnotes):

(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.

(2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.

(3) The proponent's duty is, in the first place, discharged by establishing a prima facie case.

(4) A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator.

(5) A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments.

(6) The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances.

(7) As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries; (b) the exclusion of persons naturally having a claim upon the testator; (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit.

(8) Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof.

(9) To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.

(10) The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue.

(11) While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.

(12) Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date.

165. Like Fell v Fell, Bailey v Bailey has been cited in many decisions of this Court and more broadly throughout Australia. Bailey v Bailey involved a case of a challenge to testamentary capacity.

166. In this century, the Court of Appeal has also explained the principles on which the parties’ roles in probate proceedings are played out having regard to legal and evidential burdens in particular in cases involving knowledge and approval and what are described as suspicious circumstances: see Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [44]-[53] per Meagher JA, Basten JA (as his Honour then was) at [1] and Campbell JA at [19] agreeing. It may be noted that Meagher JA’s decision also addresses principles associated with claims of undue influence or fraud (neither of which are alleged here).

167. Two further significant practical matters bear mention.

168. First, in probate proceedings involving issues of testamentary capacity and knowledge and approval, as a matter of practice the moving party on the hearing is often the party assessed as having the burden of the real issue in the proceedings. Thus, if there are several Wills which are contenders for being the final Will and within the proceedings the chronologically last document is disputed, but there is no dispute as to the validity of an earlier testamentary instrument, the Court, as a matter of procedure and practice, will call almost invariably upon the party with the burden of proof of the last contested Will as being the effective applicant or moving party in the proceedings, irrespective of whether that party is nominally a cross-claimant and the party that was propounding the earlier uncontested Will is nominally a plaintiff.

169. Secondly, the underlying object and purpose of probate litigation inform at least in one sense how the Court views the role of the parties where there is a contest over which Will was the last Will of a testator. Thus, an interested party who, on rational and reasonable grounds, appears to oppose a grant is viewed as assisting the Court by acting as a contradictor in the important task of the Court’s determination of what is the last true testamentary instrument of a free and capable testator: Micallef v Linney [2020] NSWSC 1457 (Micallef v Linney) at [6] per Emmett AJA. His Honour there stated (footnote omitted):

6. The ordinary rule that costs follow the event is not necessarily applicable in a probate suit, which involves the exercise of a jurisdiction derived from the ecclesiastical courts of England. In the exercise of its probate jurisdiction, the Court is not simply resolving claims between the parties to the proceedings. Rather, a grant of probate has effect as against the whole world and not simply as the resolution of a dispute between parties. Thus, the grant affects title to property that is binding not only on the parties to a suit but also on non-parties. Accordingly, the Court must be satisfied that an instrument propounded as a testamentary instrument of a free and capable testator is in fact just that. In a sense, a person who, on rational and reasonable grounds, appears to oppose a grant thereby assists the Court by acting as a contradictor.

170. The role of a contradictor in Court proceedings varies according to purposes. A classic example is the role sometimes played by the Attorney-General in charitable trust proceedings.

171. In some proceedings, particularly in estate administration, the Court will appoint a party to act as contradictor to assist the Court and the appointment of such a contradictor may be on terms that the reasonable costs of the person appointed are to be paid out of the estate irrespective of the outcome.

172. In probate proceedings, it is certainly not the case that an opposing interested party has any entitlement to costs in the proceedings. Nonetheless, as observed above, the opposing interested party does act in a type of contradictor role to assist the Court in the proper public purpose of establishing the veracity of the document which becomes an instrument of title used in the public realm and binding on the world. The role so played by such party as a type of contradictor is clearly relevant to the Court’s determination as to the appropriate order for costs: Micallef v Linney at [6], [11], [19]-[20].

173. I explore the role of costs in probate proceedings a little further below.

Application of security for costs principles is fact and jurisdiction specific

174. In some legal literature, there are statements which at first glance suggest that Court rules regarding security for costs do not operate in probate proceedings in a manner explicitly different from their operation in other proceedings of the Court: e.g. Alexander Learmonth, Williams, Mortimer & Sunnucks - Executors, Administrators and Probate (21st ed, 2018, Thomson Reuters) at [33-18] 539.

(c) Impecuniosity of the respondents

270. It is clear from the evidence in the proceedings that Pastora has no personal property of any significant value, nor does she own real property.

271. Lidia has very meagre personal property. She owns no real property in her own right. The house that she lives in with her husband is in his sole name.

272. Omar currently lives with Pastora in a home owned by her parents (and still in their name). He has lived with Pastora since April 2020. They are both subsistence farmers on land that belonged to his grandparents which appears to be two hours away from the residence in which they live. Omar (separately to the property in which he resides) owns a property at Calderon, Pichincha valued at US$50,000 and has minimal personal property other than perhaps a Toyota Hilux pickup truck which is valued at US$30,000.

273. I touch upon the question of raising funds below. However, absent the ability of any of the respondents to somehow arrange to borrow against the real properties identified above, collectively their personal assets would be either insufficient to cover the amount of security claimed by the applicant or would, I think, come very close to consuming the entirety of their personal assets if they had to realise them and provide security.

(d) Basis for the respondents’ impecuniosity

274. There is no suggestion in the proceedings that there is any relevant conduct on the part of the applicant which has given rise to the respondents’ financial circumstances as disclosed.

(e) Whether the plaintiffs are effectively in the position of a defendant

275. For the reasons that I have referred to above, I consider that the respondents are defendants to the real issue in the proceedings.

(f) Whether an order would stifle the proceedings

276. A plaintiff who wishes to submit that an order for security would stifle the litigation bears the onus of showing that this is so: Rusiti v Alkhoshaibi [2007] NSWSC 1374 (Rusiti) at [56] per McDougall J citing Austin J in Fiduciary Limited v Morningstar Research Pty Ltd [2004] NSWSC 664;(2004) 208 ALR 564 at 582 [78] and Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [66]. Thus, for example, to demonstrate that an order for security might stifle litigation a plaintiff might seek to adduce evidence to show that they had no prospect of putting up or obtaining security: Rusiti at [56].

277. The evidence as to the respondents’ financial resources was provided not directly by them but in the 22 December 2022 affidavit of Mr Briffa. Evidence of Mr Briffa in that affidavit was deposed to on the basis of information from each of the respondents and his belief as to the truth of those facts. There was no evidence in that affidavit or otherwise that any of the respondents are unable to borrow or otherwise raise funds for security.

278. In terms of raising money to provide security, Ms Power submitted that Omar’s pickup truck might be a saleable vehicle. I wondered how realistic that might be in light of the fact that it was evidenced that it was used on the farm. Ms Power accepted, in response to a question from me, that it was an available inference to draw from the evidence that the pickup truck was a type of working vehicle: T 6. I further raised the question as to whether in light of it being a working asset, he relied upon it for employment or work purposes such that if he sold it, he might become unemployed or unable to earn income. Ms Power disputed that that was an available inference that could be drawn: T 6.

279. The evidence indicates that the pickup truck is a replacement truck for a truck purchased by the deceased in about 2015 and put in Omar’s name so that Pastora could travel by motor vehicle and “not suffer too much raising cattle”. Omar has worked as a farmer since early 2020. There is evidence that the vehicle is used principally on the farm. Without anything further, I would admit of the possibility that the current pickup truck might potentially be used by Pastora or Omar in the process of generating income. However, I do not think the evidence permits me to draw that conclusion in any decisive way. What can be said is that sale of the vehicle would likely have some material impact upon the lives of Pastora and Omar given the above-mentioned evidence.

280. Omar’s only other substantial asset is the land at Calderon. Omar purchased land at Calderon in 2016. He started to build a house on that land but did not have enough money to finish the house. The deceased paid for the house to be completed so that it is habitable. Omar lived at the house between 2016 and April 2020. He now rents the Calderon house and uses the money he receives to support Pastora noting that the money “we make here is barely enough to survive”. In light of that evidence, it does seem to me that any potential sale of the property in Omar’s name would clearly have an impact upon his income.

281. No evidence was adduced as to how people in the position of the respondents might in Ecuador be able to go about attempting to raise funds on the security of real property.

282. I have outlined some of the respondents’ financial details above. Some further context to their financial circumstances appears in their own affidavits. The following may be noted.

283. Pastora is now aged 87. She describes her occupation as being a subsistence farmer. She deposes to the fact that in the 1970s, the deceased moved to Australia to earn good income so that he could provide for his family including Pastora “because we were, and still are, very poor”. Pastora goes on to detail that, between the 1970s and about 2002, the deceased transferred money to her twice a year to contribute towards general living and household expenses. She states that the money the deceased transferred to them made a significant difference to their lives in Ecuador and the money was used to pay for property taxes, groceries and corn weeding.

284. In the early 2000s, the deceased opened a joint account with Pastora in Ecuador and put money in it so that she had access to additional money whenever she needed it. In 2003, when Rosa passed away, Pastora indicates that her family and she relied heavily on the deceased both emotionally and financially during that time.

285. Pastora further indicates that before the deceased travelled to Australia in 2018 the deceased made sure there was enough money in the joint account so that she could make withdrawals whenever she needed it. She indicates that the account is still active and that she uses the money to pay for household expenses including groceries and other expenses.

286. Lidia is an accountant but is aged 65 and I infer not in the prime of her working career. She indicates that the deceased sent money to pay for her high school and university studies and also contributed to the cost of raising her children and that he sent money to cover her personal expenses. She states that the deceased was her main support person financially and emotionally.

287. Whilst the Court would have been assisted by some more detail in understanding the respondents’ ability or inability to raise security, in light of the evidence that was adduced on the application the following matters seem material to their ability to raise security, if security were to be ordered:

1. the respondents are in general terms people who would be considered to be financially poor;

2. to the extent that they have needed financial assistance over the years the deceased was the person who provided it. He is no longer available to provide that assistance to them;

3. it is not blindingly obvious that they have ready ability to raise substantial funds to provide security for costs;

4. as a matter of common sense the relative meagre value of their collective assets would likely provide some limitation on the amount of money that they could borrow;

5. even assuming that Omar was able to borrow against the farm property or that Lidia was able to obtain some borrowings against the house owned by her husband, the amount of any borrowings would likely be limited not only by the small value of those properties, but potentially also by whatever prevailing guidelines there are as to loan to value ratios; and

6. if one leaves aside the property in which Pastora and Omar are residing (which is a property in the name of the deceased’s parents) and also leaves aside the property in which Lidia resides (which is in the sole name of her husband), the real and personal property of the respondents would, if collectively totalled and realised, be arguably only just sufficient to cover the entirety of the security sought.

(g) Whether the proceedings involve a matter of public importance

288. In light of the discussion above regarding the nature of probate proceedings, it can be said that the Court’s consideration of an application for probate of a Will involves a matter of some public importance.

(h) Admissions or payment into Court

289. There is no relevant payment into Court. However, the applicant has effectively admitted that there is no dispute in relation to the 2018 Will and, in that context, the real issue in the proceedings is the validity of the Will propounded by the applicant.

(i) Delay by the respondents

290. There is no delay by the respondents in commencing the proceedings in my estimation. Indeed, on one view, in the face of the applicant having advertised an intention to apply for a grant of probate, it is the applicant if anyone who delayed in bringing the dispute between the parties to a head by not taking any steps to remove either of the caveats lodged by the respondents or otherwise commence proceedings to propound the 2021 Will prior to the plaintiffs filing the statement of claim. Ms Power accepted that it could not be said that there had been any relevant delay by the respondents that had given rise to any prejudice to the applicant.

(j) Costs of the proceedings

291. Mr Dutschke provided an estimate of costs in the proceedings. He indicated that the tasks to be attended to in the proceedings include review of the statement of claim, having conferences with his client and counsel, preparing notices to produce and subpoenas, reviewing such material, perusing evidence and preparing affidavit evidence, instructing, conferring with and perusing reports of medical experts, further conferring with counsel, assisting with settling of submissions, preparation of court books, attending at a mediation and other interlocutory applications, and preparing for and attending upon a three-day hearing.

292. Based on those tasks, Mr Dutschke estimated that the applicant’s solicitors’ costs would be in the order of $51,480. He estimates counsel’s fees and other disbursements would total $55,000. Those costs total $106,480 (inclusive of GST). He estimates that an assessment of those costs calculated on the ordinary basis would give rise to an amount payable after assessment of $91,036.

293. There was no cross-examination in relation to that estimate. However, having practised in estate law for many years at the Bar and being a judge of this Court for some time, I consider that the estimate is somewhat modest. I consider that the costs of any such three-day hearing could well substantially exceed that estimate.

(k) Proportionality of amount of security sought to the importance and complexity of the subject matter in dispute

294. One of the r 42.21 factors to be considered is whether the security sought is proportionate to the importance and complexity of the subject matter in dispute.

295. Consideration of this is also to be viewed in light of the CPA principle of proportionality of costs that, in any proceedings, the practice and procedure of the Court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute: s 60 CPA; April Fine Paper v Moore Business Systems (2009) 75 NSWLR 619; [2009] NSWSC 867 (April Fine Paper) at [7]-[14] per White J (as his Honour then was).

296. Ms Power made a submission that the amount of security sought ($90,000) is proportionate in the context of an estate of more than $1 million: T 25.39-40.

297. Clearly, the quantum or value of the claim is an element of the importance of the subject matter of the dispute: April Fine Paper at [8]. Nevertheless, it is not obvious to me that the reference to “subject matter in dispute” would in any given case be simply limited to a valuation or estimation of the assets that make up the estate.

298. However, as I have noted above, there is not sufficient material for me to make any assessment of the value of the deceased’s estate. That impedes the making of any proper assessment of the proportionality criterion.

(l) Timing of application for security for costs

299. There is no suggestion that the applicant has delayed once the proceedings were commenced in seeking security for costs.

(m) Enforceability of costs within Australia

300. It is uncontentious that none of the respondents have any assets within Australia and, accordingly, an order for costs if made against them would not be able to be enforced against property within Australia.

(n) Enforcement in Ecuador

301. Neither counsel was able to direct me to any particular provisions regarding enforcement of a judgment of this Court in Ecuador.

302. Mr Brown made reference to the Foreign Judgments Act 1991 (Cth) (Foreign Judgments Act).

303. The position regarding the extent to which a judgment obtained in the Supreme Court of New South Wales may be enforced in Ecuador is unclear, but it is probable that such enforcement would be difficult and potentially costly, given the absence of reciprocal enforcement protocols between Australia and Ecuador.

304. The Foreign Judgments Act governs the enforcement of foreign judgments within Australia domestically. That is, if a judgment is obtained in a Court of specified overseas jurisdictions, it may be registered in an Australian Court domestically and enforced as if it were a judgment of that Australian Court. The Foreign Judgments Regulations 1992 (Cth) outlines (in a schedule) a list of Courts in foreign countries with respect to which the Foreign Judgments Act applies. Ecuador is not a jurisdiction included in that schedule. Accordingly, at first blush, Ecuador is not a jurisdiction with “reciprocal enforcement protocols” with Australia (cf Re Condon at [103]).

305. The issue at hand, however, relates not to the enforcement of a foreign judgment in Australia domestically but, rather, to the amenability of a costs order to enforcement in Ecuador, should the applicant’s case succeed at trial and a costs order be obtained against the respondents. The extent to which a costs order made in the Supreme Court of New South Wales may be enforced in Ecuador depends, at least in part, on Ecuadorian domestic law.

306. In Donoghue v Commissioner of Taxation [2018] FCA 468, Logan J dealt with a security for costs application concerning a litigant who was living in London at the time of the application but whose home address was stated to be in Ecuador (see at [12]). When considering the factors relevant to the making of the order, Logan J commented on the extent to which a prospective judgment debt might have been able to be enforced in Ecuador as follows (at [40]):

40. Though raised by me in the course of submissions, there was no definitive position given as to whether, in the event of success, the Commissioner would be able to enforce in the United Kingdom, much less in Ecuador, a judgment debt in respect of costs. That he may be able so to do is no reason in itself for not ordering security for costs. The same applies in respect of the substantive revenue liability debt. As to that, at common law, an Australian judgment in respect of that liability would have the status of a foreign revenue judgment such that its enforceability abroad may be moot. That, of course, could be the subject of alteration by international agreement and related statutory provision. As I have said, though the subject was raised, it was not definitively answered in submissions. I have not, in the time available, been able to reach any concluded view myself on that subject.

307. The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague Judgments Convention) (Convention) is an instrument which may assist litigants in enforcing judgments obtained in Australian Courts in foreign jurisdictions in the future.

308. However:

1. the Convention is not yet in force;

2. Ecuador is not a contracting party to the Convention; and

3. the Convention does not apply to “wills and succession” matters (Article 2(1)(d)) – so there would be a question as to the applicability of the Convention to proceedings such as these proceedings which relate to the estate of a deceased person (depending on their characterisation).

Discussion

309. Whilst Ms Power submitted that the respondents’ case is very weak and sought in her written submissions to analyse the evidentiary material relied upon by the respondents I do not accept, as I have indicated, that the respondents’ case is very weak or (as Ms Power otherwise described it) that their prospects of success are “very low”. On the contrary, based on the materials adduced on the application, I consider that the respondents have well arguable prospects of success of challenging the validity of the 2021 Will.

310. I have no real doubt as to the genuineness of the respondents’ claims in the proceedings.

311. It is beyond question that in terms of the disclosure of assets that the respondents own, the respondents are all, comparatively speaking, impecunious in the sense of having little money or financial resources.

312. I have struggled in assessing whether an order for security for costs would stifle the proceedings. Strictly speaking, they adduced no express evidence to show that they had no prospect of putting up or obtaining security.

313. Nonetheless, as I have discussed above, in light of the evidence regarding their financial position which reveals that they have very modest assets and in light of the fact that they relied upon the deceased for financial assistance, even if one could not strictly speaking conclude that an order for security for costs would actually stifle the proceedings, the above matters suggest to me that it might well be a real burden for the respondents to provide security of the order being sought.

314. As I have discussed above, the nature of probate proceedings is a relevant aspect to consideration of the question of security.

315. I consider that there is a strong (and perhaps even a decisive) argument in the proceedings that the applicant is the effective plaintiff to the real issue in the proceedings. Whilst it is true that the respondents seek the grant to the NSWTG of the 2018 Will, the applicant does not dispute the validity of that Will. This is a material point of distinction from the facts of Re Condon in which the plaintiff in that case was, in forensic terms, the moving party in the proceedings (it being incumbent on him to prove the disputed 2006 document): Re Condon at [119].

316. Mr Brown submitted, and I accept, that on the very limited evidence that is available at the moment, there is a distinct argument that a probable outcome of costs would likely be that there would be no order as to costs against the respondents or that they may even get their costs out of the estate on the basis that there is a legitimate enquiry as to whether the 2021 Will is the last free Will of a capable testator or what I have described otherwise as there being a well arguable case of matters occasioning doubt as to the validity of that Will: T 35.

317. Having regard to the matters that I have discussed above under the heading of “Consideration of relevant matters” and, in particular, having regard to the matters that I have just mentioned, I consider that it is not appropriate on the material before me to make an order for security for costs against the respondents.

309. One question which was raised on the hearing was whether an order for security might be made against one or two of the respondents but not the other or others. Ms Power provided a submission to the effect that where plaintiffs’ claims must succeed or fail together, security will generally not be ordered against only one of them citing the decision of Brereton J (as his Honour then was) in Street v Luna Park Sydney Pty Ltd [2006] NSWSC 1317 at [28].

310. In light of the decision I have come to, it is not necessary for me to make a determination as to whether I would make an order for security against perhaps Omar and/or Lidia but not against Pastora.

Conclusion

320. The outcome of the matter is that the claim for security for costs ought to be dismissed.

321. Each party sought costs of the application. No submission was made by either side that costs should not follow the event of the application.

322. The orders that the Court makes are:

1. The applicant’s notice of motion for security for costs filed on 15 December 2022 is dismissed.

2. The applicant is to pay the respondents’ costs of and incidental to the notice of motion.

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Decision last updated: 19 May 2023