Gardiner v Hughes
[2017] VSCA 167
•29 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0142
| JAMES ALEXANDER GARDINER & ORS (according to the attached schedule) | Applicants |
| v | |
| LACHLAN OWEN STUART HUGHES and KERRIE LOUISE SLES (as executors of the Will of the late DOUGLAS WILLIAM GARDINER, deceased) & ANOR (according to the attached schedule) | Respondents |
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| JUDGES: | TATE, KYROU and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 May 2017 |
| DATE OF JUDGMENT: | 29 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 167 |
| JUDGMENT APPEALED FROM: | [2016] VSC 541 (McMillan J) |
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PROBATE – Application for revocation of grant of probate – Standing to seek revocation – Applicants would not benefit from probated will or any preceding wills – Applicants sought to invalidate all wills – Applicants entitled to benefit in case of intestacy – Whether benefit upon intestacy sufficient to establish standing to seek revocation – Whether applicant for revocation required to show prima facie case in order to establish standing – Kipping v Ash (1845) 1 Rob Ecc 270; 163 ER 1035; Re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137; Re Gillard [1949] VLR 378; Re Culina; Poulos v Pellicer [2004] NSWSC 504, considered – Supreme Court (Administration and Probate) Rules 2014 O 11 – Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr C M Scerri QC with Mr A J Verspaandonk | Holding Redlich |
| For the First and Second Respondents | Mr N J Young QC with Mr S T Pitt | Lawson Hughes Peter Walsh |
| For the Third Respondent | Mr R S Wotherspoon | Thomson Geer |
TATE JA:
I have had the benefit of reading, in draft form, the judgment of McLeish JA. I agree, for the reasons his Honour gives, that leave to appeal should be granted and the appeal allowed.
KYROU JA:
I agree with McLeish JA.
McLEISH JA:
This case concerns whether the applicants, who seek to challenge a grant of probate on the basis of the alleged testamentary incapacity of the testator, have standing to make that challenge.
Douglas William Gardiner (‘the deceased’) died on 26 June 2015. He never married, did not have a domestic partner at the time of his death and left no children. Both his parents predeceased him.
The applicants are two nephews and a niece of the deceased. If he were found to have died intestate, they would be entitled to share in one half of the estate.[1]
[1]Administration and Probate Act 1958 s 52(1)(f).
The deceased made three wills, each of which was prepared and witnessed by his solicitor, dated 13 July 2008, 29 May 2012 and 6 May 2015. The first and second respondents are the named executors of the 2012 and 2015 wills. The second respondent was the sole executor named in the 2008 will. The third respondent is a beneficiary under the 2015 will.[2] The applicants do not take any benefit under any of the wills.
[2]There are other beneficiaries under the three wills, but none is joined in the proceeding.
On 19 August 2015, the applicants lodged a caveat in respect of the estate of the deceased.
On 12 November 2015, the first and second respondents applied by originating motion for letters of administration ad colligenda bona in respect of the estate of the deceased. On 13 November 2015, that application was allowed without opposition.
On 3 December 2015, the first and second respondents applied by originating motion for a grant of probate in respect of the 2015 will. The applicants, as caveators, were given notice of the application.[3] The caveat subsequently expired.[4] On 25 January 2016, the Registrar of Probates granted probate of the 2015 will.
[3]See Supreme Court (Administration and Probate) Rules 2014 r 8.02.
[4]See ibid r 8.03.
On 28 January 2016, the applicants filed a summons in the probate proceeding seeking revocation of the grant of representation.[5]
[5]See ibid r 11.02. The summons was directed to the first and second respondents, being the executors of the 2015 will. The third respondent was later joined as a party to the proceeding by order dated 26 February 2016.
On the return of the summons, the applicants were joined as the first, second and third defendants/applicants to the proceeding. Leave was sought and granted (without objection) for the summons to be amended to set out the orders sought in the event that the grant of representation was revoked. The judge also ordered, over objection by counsel for the applicants, that the question of the standing of the applicants to seek revocation of the grant of probate be tried as a separate question.[6]
[6]See Supreme Court (General Civil Procedure) Rules 2015 r 47.04, which applies to probate proceedings by virtue of Supreme Court (Administration and Probate) Rules 2014 r 1.05.
The applicants filed an amended summons on 26 February 2016. The amended summons sought revocation of the grant of probate, declarations of invalidity in respect of each of the three wills on the grounds of testamentary incapacity and a declaration that the deceased died intestate. In the event that the grant of probate was not revoked, the amended summons sought orders that the first and second respondents be removed as executors pursuant to s 34(1)(c) of the Administration and Probate Act 1958 and that the applicants be granted letters of administration with the 2015 will annexed. The last relief was based on a claim of breach of fiduciary duty by the second respondent, precluding her from taking as a beneficiary under the 2015 will and so giving rise to a partial intestacy.
The separate question was heard before the trial judge on 7 March 2016. The judge published reasons on 9 September 2016, concluding that the applicants lacked standing.[7] Orders reciting that conclusion were made on 4 October 2016.
[7]Re Gardiner; Hughes v Gardiner [2016] VSC 541 (‘Reasons’).
The trial judge’s reasons
After outlining the history of the proceeding, the judge noted that the applicants relied only on certain paragraphs of affidavits made by the first and second applicants and their solicitor.[8] Those paragraphs established the relationship of the applicants to the deceased and that the three wills mentioned above were the deceased’s only wills. The applicants relied on no other material for the purposes of standing. In essence, then, it was the applicants’ submission that their relation to the deceased, and its consequence that they would be entitled to a share in his estate if the three wills were declared invalid, were sufficient to establish standing.[9]
[8]Ibid [9].
[9]Ibid [25].
The judge summarised the principles of standing in probate litigation as follows:[10]
As in any proceeding, an applicant must have standing to make such an application. In the context of probate litigation, being interest litigation, an applicant for revocation of a grant must be able to show that his, her or its rights will, or may, be affected by the outcome of the proceedings.[11] The authorities establish that an interest sufficient to entitle a person to oppose a grant of probate or letters of administration is sufficient to entitle a person to apply for revocation of a grant of probate or letters of administration,[12] and, an applicant must show that he, she or it has:
(a)a reasonable explanation for the delay in bringing the application to revoke the grant; and
(b)a prima facie case to challenge the grant of probate or letters of administration.[13]
[10]Ibid [24]; see also at [33]-[34]. Cf Re Watson; Raitman v Ivey [2017] VSC 322 [15] (McMillan J).
[11]Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 [212]–[216] (Lindsay J) (‘Re Kouvakas’).
[12]Re Gillard [1949] VLR 378, 381 (Barry J).
[13]See, eg, Offley v Best (1667) 1 Lev 186; 83 ER 361; Re Gillard [1949] VLR 378, 381 (Barry J); Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VR 318, 320 (Herring CJ); Van Wyk v Albon [2011] VSC 120; Re Kouvakas [2014] NSWSC 786 [285]–[288] (Lindsay J); Re Roland; Swalwell v Swalwell (Unreported, Supreme Court of New South Wales, Needham J, 15 July 1988); Re Cockell; Cole v Paisley [2016] NSWSC 349 [53] (Lindsay J) (‘Re Cockell’).
The judge noted that there were dicta to the effect that the ‘bare possibility of an interest’ was sufficient to establish standing,[14] but stated that ‘officious inter‑meddlers’ and ‘outside busybodies’ were precluded from bringing probate proceedings in a contested hearing concerning the validity of a will.[15] The judge also stated that in addressing the question of standing she was bound to consider the Rules of Court and the Civil Procedure Act 2010 (‘CPA’), both of which emphasised efficient case management.[16] She referred to aspects of the CPA, including the overarching purpose and the overarching obligations and the summary judgment procedure.[17]
[14]Reasons [26], citing Re Gillard [1949] VLR 378, 381 and Kipping v Ash (1845) 1 Rob Ecc 270; 163 ER 1035.
[15]Reasons [26], citing Re Finn [1916] VLR 165, Re Seymour [1934] VLR 136, Re Culina; Poulos v Pellicer [2004] NSWC 504 [10] (Windeyer J) (‘Re Culina’) and Woodley-Page v Simmons (1987) 217 ALR 25, 35 (Young J).
[16]Reasons [27].
[17]Ibid [31]–[32].
Turning to the facts of the present case, the judge reiterated that the applicants did not rely on any evidence to challenge the three wills or seek to make out a prima facie case for revocation of the grant of probate.[18] Rather, a ‘broad brush challenge’ was sought to be made, despite authority to the effect that such challenges were not sufficient to confer standing on an applicant to challenge a will.[19] Moreover, the applicants could not challenge all three wills in one application. Rather, they were required to challenge each will in a separate proceeding, albeit that those applications would usually be heard together.[20]
[18]Ibid [34], citing Re Egan [1963] VR 318, 320 (Herring CJ).
[19]Ibid [38], citing Nicholson v Kollias [2005] VSC 473 [4]–[5] (Harper J).
[20]Ibid [36].
The judge cited Re Davies; Griffiths v Lewis[21] for the proposition that because the applicants did not have any interest under any of the three wills, they did not have standing to challenge the probated will or the penultimate will. Wills benefitting from the presumption of validity were interposed between the probated will and an intestacy.[22]
[21][2013] VSC 609 (‘Re Davies’).
[22]Reasons [38].
In conclusion, the judge said:[23]
the applicants are not beneficiaries under the probated will of the deceased, nor are they beneficiaries under the deceased’s penultimate will or his third will. Accordingly, they are unable to establish a prima facie case for an interest in the deceased’s estate and do not have standing to seek to revoke the grant of probate or to seek the declarations as to the invalidity of the deceased’s three wills.
[23]Ibid [45].
As to the alternative claim for removal of the first and second respondents as executors, the trial judge noted that the applicants contended they had standing on the same basis as in respect of the claims for revocation and declaratory relief.[24] The claim for removal was said to rest on breach of fiduciary duty by the second respondent. But there was no evidence of such a breach, nor was there any evidence of breach by the first respondent.[25] Further, if the second plaintiff had breached her fiduciary duties, the cause of action would properly be brought by the legal personal representative of the estate, being the executors or, if the second respondent contested the claim, the first respondent.[26] Any claim for breach of fiduciary duty ought to have been brought by way of a separate proceeding with a properly pleaded claim.[27] Accordingly, standing was not established.[28]
[24]Ibid [56].
[25]Ibid [57].
[26]Ibid [58].
[27]Ibid [60].
[28]Ibid [61].
The application for leave to appeal
The applicants seek leave to appeal on three grounds:[29]
[29]The application for leave to appeal refers to the parties bringing the appeal as ‘appellants’. They remain applicants unless and until leave is granted. Accordingly, the grounds of appeal have been amended to refer to the applicants.
1.The learned judge misapplied the test for the standing of the applicants in that the learned judge required the applicants to demonstrate:
(i)a reasonable explanation for the delay in bringing the application to revoke the grant of probate of the 6 May 2015 will;
(ii)a prima facie case to challenge the grant of probate of the 6 May 2015 will; and
(iii)a prima facie case to seek declarations of invalidity in respect of the wills of the deceased made on 29 May 2012 and 13 July 2008.
2.The learned judge erred in concluding that standing to challenge a will can only exist if the challenger is entitled to take under the will itself or the immediately preceding dispositive regime (whether by will or in accordance with the laws of devolution on intestacy).
3.The proper application of the principles contained in the [CPA] would have led to a finding that the applicants ha[ve] standing.
All three grounds challenge the judge’s determination that the applicants were without standing. It is therefore convenient to deal with the grounds together.
Applicants’ submissions
The applicants submitted that the test for standing is that articulated by Lindsay J in Re Cockell: ‘an applicant for revocation of a grant must be able to show that his, her or its rights will, or may, be affected by the outcome of the proceedings’.[30] They contended that the merits of the challenge are irrelevant to whether standing is demonstrated. On the applicants’ case, the explanation for any delay and the merits of the challenge to the grant of probate are matters to be dealt with on the substantive revocation application, or any application for summary disposition, rather than as an aspect of standing. It was submitted that the authorities did not support the judge’s conclusion that these matters went to standing. Among other things, it was submitted that the procedure that now applies differs from that in many of the earlier cases and that the Court should be cautious in applying authorities which were concerned with a different procedure.
[30][2016] NSWSC 349 [54] (emphasis added). See also Re Kouvakas [2014] NSWSC 786 [212] (Lindsay J).
The applicants submitted that the fact that three wills were impugned in one summons was not fatal. They pointed again to Re Cockell, where four wills were impugned in one application without any question as to standing arising.[31] This was said to be an instance of the probate jurisdiction being exercised with appropriate flexibility.[32]
[31]See also Nicholson v Knaggs [2009] VSC 64.
[32]See Re Kouvakas [2014] NSWSC 786 [110]–[111] (Lindsay J); Re Cockell [2016] NSWSC 349 [86] (Lindsay J).
The applicants drew support from the CPA. The overarching purpose of the CPA — to facilitate the ‘just, efficient, timely and cost‑effective resolution of the real issues in dispute’[33] — was said to be furthered by allowing the three wills to be put in issue pursuant to one summons, even though the proceeding itself concerned probate only of the final will.
[33]CPA s 7(1).
The applicants asserted that they had standing to seek removal of the executors because there would, despite the 2015 will being valid, be a partial intestacy in their favour if their allegations of breach of fiduciary duty were sustained.
First and second respondents’ submissions
The first and second respondents relied on authorities including Re Devoy; Fitzgerald v Fitzgerald[34] as establishing the test for sufficiency of interest. There, Philp J stated that ‘an interest sufficient to entitle a person to object to a grant must be some right of that person which will be affected by the grant’.[35] The first and second respondents submitted that courts had consistently required a prima facie case to be shown before their probate jurisdiction could be invoked to oppose or seek to revoke a grant of probate, irrespective of the procedural rules from time to time. That requirement was said to reflect the position that a grant of probate meant that the will was presumed to be validly made, and amounted to an instrument of title good against all the world unless successfully challenged.
[34][1943] St R Qd 137, 144–5 (Philp J; Webb CJ and Mansfield J agreeing) (‘Re Devoy’).
[35]Ibid 145 (emphasis added).
The first and second respondents contended that the applicants had demonstrated no right or interest in the estate that will be affected. Rather, they made a broad brush attempt to impugn all three wills on the basis of testamentary incapacity. In any event, the 2008 and 2012 wills could not be impugned in this proceeding, which only concerned the grant of probate in respect of the 2015 will. Nor could the proceeding be deployed to mount a challenge to the position of the executors.
Re Cockell was said to be distinguishable, since standing was not put in issue in that case and there was strong evidence of incapacity. It therefore did not afford support for the applicants’ attempt to impugn all three wills by way of one summons.
The CPA was said to reinforce the trial judge’s approach, because the applicants sought to embark on a fishing expedition and a drawn-out trial in the hope that it would produce a foundation for impugning the three wills. The course taken by the applicants needed to be considered against the background of their failure to utilise the caveat procedure when they had the opportunity to do so before probate was granted.
Lastly, the first and second respondents submitted that, even if standing were established, the applicants had no real prospect of establishing testamentary incapacity. In those circumstances, the judge’s decision could not be said to have occasioned substantial injustice. The application for leave to appeal should therefore be refused on that basis alone.
Third respondent’s submissions
The third respondent similarly contended that the applicants had no interest in the 2015 will, nor in the penultimate will. She too relied on Re Devoy as stating the test for standing in probate litigation, which was said to require an interest in the particular proceeding rather than just an interest in the estate.[36] It was submitted that evidence was always required in a probate application because what was at stake was the devolution of an estate, and a grant of probate amounted to an instrument of title. Standing to challenge that title was said to be akin to a proprietary right, capable of being deployed against third parties and able to be assigned and dealt with. To establish such a right was said to require evidence.
[36]The third respondent further contended that this Court is bound to apply Re Devoy unless it is plainly wrong: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151–2 [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
The third respondent submitted that the authorities indicated that a claimant challenging probate must have an interest either in the estate under the probated will or under the penultimate will, or an interest on intestacy where there is no prior will.
The third respondent placed greater emphasis on the procedural implications of the course which the applicants in this case had taken. She submitted that the revocation application related solely to the grant of probate in respect of the 2015 will, which was the only subject matter of the proceeding. It had nothing to do with the two earlier wills. Those wills could not be impugned until they were the subject of an application for a grant of probate, something that could only occur if the grant in respect of the 2015 will were revoked. For that reason, the relief the applicants sought in relation to the two earlier wills, and a declaration that the deceased died intestate, was not relief that could be granted in the revocation application. The applicants did not have an interest in the present proceeding, as required by Re Devoy. For similar reasons, the probate proceeding could not be used as a vehicle for seeking removal of the executors.
Statutory provisions and Rules of Court
The requirements for standing in the present case can be seen to depend upon both procedural requirements and the course of authority regarding standing in probate law. It will be necessary to examine the case law upon which the various submissions relied. It is first convenient to refer to the statutory provisions and Rules of Court governing probate applications.
Section 58 of the Administration and Probate Act 1958 permits any person to lodge with the Registrar of Probates a caveat against the making of a grant of probate, in accordance with the Rules of the Supreme Court. Rule 8.01 of the Supreme Court (Administration and Probate) Rules 2014 requires a caveat to be in a form requiring only particulars of the deceased and the caveator. Unless the caveat expires or is withdrawn, the Registrar cannot grant probate without an order of the Court.[37] Rule 8.02(b) requires the Registrar to give the caveator notice of any application for probate, whereupon the caveat will expire after 30 days unless the caveator files and serves a statement of the grounds of the objection to a grant of probate.[38] Within seven days after the filing of a statement of grounds, the caveator must apply to a judge for directions (failing which the applicant for probate may do so).[39] The directions that may then be given include directions as to particulars of the grounds, pleadings and affidavits.[40]
[37]Administration and Probate Act s 12(2)(a).
[38]Supreme Court (Administration and Probate) Rules 2014 r 8.03. The grounds may be stated as set out in r 8.06.
[39]Ibid r 8.07.
[40]Ibid r 8.08.
The Rules make only brief provision in respect of revocation of probate. Rule 11.02 states simply that an application for revocation shall be made by summons in the proceeding in which the grant was made. The Rules do not prescribe any particular procedure to be followed after the issuing of such a summons.[41]
[41]In that regard, the Supreme Court (General Civil Procedure) Rules 2015 apply: see Supreme Court (Administration and Probate) Rules 2014 r 1.05.
Case law
The proposed grounds of appeal challenge the three related strands to the judge’s reasoning in concluding that the applicants lacked standing: the requirement that an applicant for the revocation of probate demonstrate a prima facie case to challenge the grant, the requirement that an applicant seeking to challenge a will must take under that will or the preceding dispositive regime (whether a prior will or an intestacy), and the application of the principles in the CPA. It is necessary to review the case law upon which the judge and the parties relied. Most of that case law concerns the first two matters.
It is convenient to approach the cases in chronological order.
The earliest authority relied upon by the trial judge for the proposition that an applicant for a revocation of probate must establish a prima facie case in order to establish standing was Offley v Best.[42] In that case, letters of administration had been granted to the sister of an intestate deceased, even though a brother of the deceased had lodged a caveat. The brother sought to appeal against the grant.[43] One of several questions referred to the court for consideration was whether the Ordinary,[44] having granted administration, could revoke the grant without cause. It was held that the Ordinary could only revoke the grant for cause, because the grant had given the sister an interest in the estate.[45] The case does not appear to have been concerned with questions of standing, which was not called into issue.
[42](1667) 1 Lev 186; 83 ER 361, cited in Reasons [24] n 22.
[43]Administration had been procured without notice to the brother.
[44]Ordinaries were diocesan bishops. The personal property of an intestate deceased vested in the Ordinary: Sir William Holdsworth, A History of English Law (Methuen & Co and Sweet & Maxwell, 5th ed, 1942) vol 3, 566–8. In Victoria, the property of an intestate deceased vests in State Trustees Ltd ‘in the same manner and to the same extent as formerly in the case of personal estate in England it vested in the Ordinary’: Administration and Probate Act 1958 s 19.
[45]Offley v Best (1667) 1 Lev 186, 186; 83 ER 361, 361.
The next case is Kipping v Ash.[46] The testator’s will disposed of his personal estate to persons other than his brother’s children, who instead took certain real estate as tenants in common. By a codicil, the children were given pecuniary legacies and the devise of real estate was revoked. The children sought to challenge the codicil in the Prerogative Court. The Prerogative Court was an ecclesiastical court whose jurisdiction in testamentary matters, like that of all ecclesiastical courts, extended to personal property but not to real property.[47] At the time Kipping v Ash was decided, jurisdiction in matters concerning testamentary devises of real property lay with the common law courts.[48]
[46](1845) 1 Rob Ecc 270; 163 ER 1035.
[47]Sir William Holdsworth, A History of English Law (Methuen & Co and Sweet & Maxwell, 7th ed, 1956) vol 1, 625.
[48]But see R H Helmholz, The Oxford History of the Laws of England (Oxford University Press, 2004) vol 1, 423 (observing that, while this was true in a strict sense, there were cases that ‘straddled the line’, a fact that ‘indicate[d] … the difficulties inherent in drawing a line between land and chattels’). The Court of Probate Act 1857, 20 & 21 Vict, c 77 conferred on the newly created Court of Probate the jurisdiction that had previously been exercised by the Prerogative Court, thus consolidating testamentary jurisdiction regardless of the character of the property devised.
The executors asserted that the children should have sought to challenge the codicil before another (common law) tribunal, because their interest in the personal estate was not prejudiced in any way; rather, they sought only to challenge the revocation of their interest in the real property.[49] Although the executors contended that their argument was not one concerning jurisdiction, in effect it was: they submitted that the children had to show they had ‘an interest to oppose the codicil here’.[50]
[49]Kipping v Ash (1845) 1 Rob Ecc 270, 270–1; 163 ER 1035, 1036.
[50]Ibid 272; 1036 (J Haggard and G R Harding) (during argument) (emphasis added).
The children submitted that the Court had jurisdiction as the codicil concerned both realty and personalty. They also observed that they had not been called upon at this point to set forth the ground of their opposition to the codicil, but that they might oppose the codicil on various grounds, including fraud.[51]
[51]Ibid 271; 1036.
Sir Herbert Jenner Fust’s reasons were brief and may be set out in full (omitting the judge’s recitation of the argument):[52]
I am not prepared to say that it is not competent to the party to oppose the codicil, for instance, on the score of fraud; that they can be precluded from shewing fraud in the transaction. Though at present that is merely a suggestion, still I know not what case may be made out against the codicil. I am therefore of opinion that they have an interest, and that the bare possibility of an interest is sufficient.
[52]Ibid 272–3; 1036 (Sir Herbert Jenner Fust).
The reasoning is difficult to follow. One way of interpreting the decision is to note that Sir Herbert Jenner Fust was clearly influenced by the possibility of fraud vitiating the codicil. Presumably if fraud were shown the codicil would be set aside in its entirety. An order of that kind would affect the children’s interest in both the real and the personal property of the deceased.
If significance is attached to the fraud argument, it may be seen that Sir Herbert Jenner Fust may have ultimately resolved the matter by taking the view that the Prerogative Court’s jurisdiction extended to matters of mixed realty and personalty, at least in cases of fraud. It is understandable that he may have taken that view, as it was said by the children to be supported by authority.[53]
[53]Ibid 271; 1036, citing Partridge’s Case (1702) 2 Salk 552; 91 ER 468.
If the judgment is read in this way, the reference to the ‘bare possibility of an interest’ being sufficient is an obiter dictum. That is because the children clearly had an interest in the estate if they were able to have the codicil set aside on grounds of fraud, as they would receive realty pursuant to the will.
In any event, textbooks have treated Kipping v Ash as authority for the proposition that the ‘bare possibility of an interest’ is sufficient to establish standing to challenge a grant of probate and it has been consistently applied by courts since.[54] However the reasons are interpreted and whether or not the ‘bare possibility of an interest’ test was obiter, that test has, in the 172 years since, been interpreted as an authoritative declaration of the principles of standing in probate matters.
[54]See, eg, R D’Costa, P Teverson and T Synak, Tristram and Coote’s Probate Practice (LexisNexis, 31st ed, 2015) 785 [28.01]; Re Gillard [1949] VLR 378, 382 (Barry J); Re Culina [2004] NSWSC 504 [11] (Windeyer J); Randall v Randall [2016] EWCA Civ 494 [15] (Lord Dyson MR; McCombe and King LJJ agreeing).
The judge in the present case held that this decision did not enable an ‘officious inter-meddler’ or ‘outside busybodies’ to take part in a contested probate hearing.[55] However, the applicants did not suggest otherwise. They submitted that the fact that they stood to take on an intestacy, without more, excluded them from those classes and that they had shown the bare possibility of an interest by that fact alone.
[55]Reasons [26], citing Re Finn [1916] VLR 165, Re Seymour [1934] VLR 136 and Re Culina [2004] NSWSC 504 [10]. The first case concerned only an application for discovery. It appears that the intended reference was to Re Finn [1942] VLR 125, 128 (Lowe J), where it was held that a caveator had a ‘mere naked right to litigate’ which was not property which had passed to his trustee in bankruptcy.
In oral argument, the respondents relied on Re Lamont.[56] This decision of Molesworth J stands for the proposition that, after a grant of probate, the next of kin is not entitled, as of right, to put the executor to proof of the will, or to require an inquiry into the circumstances attending its execution.[57] However, this illustrates the imposition of threshold procedural requirements before a case proceeds, rather than the existence of special rules of standing. The issue was not whether the next of kin had standing to challenge the grant of probate, but whether that, without more, entitled the next of kin to require proof of the will or an inquiry.
[56](1881) 7 VLR 86.
[57]Ibid 98–9.
Re Seymour,[58] upon which the judge also relied in this regard, usefully highlights the way in which the procedure for challenging a will pending probate operated under former Rules of Court. A creditor of a bankrupt son of the testator lodged a caveat against probate or administration on the basis that, if the preceding will was instead admitted to probate, the bankrupt’s estate would succeed to property over which the caveator had security. The applicant for administration argued that the creditor’s interest was too remote to give him the right to lodge a caveat and obtained an order nisi for the creditor to show cause why the caveat should not be removed. Mann ACJ held that the requirement of an interest was satisfied by the fact that the will being propounded caused the caveator’s security or advantage under the preceding will to disappear. An adjournment was then permitted to enable the caveator to ‘show by affidavit or otherwise on the return of the order nisi some ground for referring the matter for trial — some primâ facie matter to be determined — before the usual order is made to put the matter in the list for trial’.[59] It is plain from this decision that the requirement to establish a prima facie case arose only after standing had been determined, and that it did so as a consequence of the order nisi procedure then in place. In other words, a prima facie case only had to be shown after the applicant for probate or administration took out an order nisi calling upon the caveator to show cause why the caveat should not be removed. Mann ACJ observed that the procedure in that regard was the same as that which applied when application is made to revoke a grant.[60]
[58][1934] VLR 136.
[59]Ibid 140.
[60]Ibid 142.
The next case is Re Devoy,[61] a decision of the Full Court of the Supreme Court of Queensland, upon which the respondents placed considerable reliance before us but which appears not to have been brought to the judge’s attention. The Full Court there considered questions reserved in an action for a grant of probate. The defendant, who was one of the next of kin of the testator, alleged a want of testamentary capacity and sought to have the will proved in solemn form. He had no interest under the will, or under a preceding will. He did not dispute the validity of the preceding will. At the same time, a niece of the testator sought to intervene in the suit. She was entitled to the same interest under both wills and also did not challenge the earlier will.
[61][1943] St R Qd 137.
Counsel for the plaintiff executors submitted that, although the next of kin ‘may oppose probate of all the testamentary papers, as having an interest in having them set aside as a whole, he is not entitled to oppose any particular one he may think fit, for some interest in having that paper set aside, however remote, is necessary’.[62] This submission helps to clarify what the argument was about. It was not suggested that the defendant was unable to challenge both wills, just that he could not challenge the final will alone. The defendant and the intervener argued that the wording of new probate rules made in 1895, which provided that next of kin or other persons ‘interested in the estate’ could require that the will be proved in solemn form, indicated that any next of kin could require a will to be proved in solemn form.
[62]Ibid 140–1.
In that context, Philp J (with whom Webb CJ and Mansfield J agreed) made the following observations:[63]
Now, it is conceded that according to the law relating to probate subsisting before 1895 in Queensland no person, whether he were next of kin to the deceased or not, could oppose a grant of probate of a will unless he had some interest to protect; that is to say, that no person could force an executor to bring an action to prove a will in solemn form and oppose the grant of probate unless he could show that such a grant would affect some interest of his own. It is conceded that a person who merely had an interest or pretended interest in the estate could not, merely upon showing such an interest or pretended interest, oppose a will: he must have been able to show that the grant of probate would affect some interest of his. It is also conceded that the law provided that no person could intervene in a probate action merely because he was interested in the estate: he must have shown that he was interested in the cause. These principles were based on deep-rooted policy, because it is contrary to the interest of the State that persons having nothing to gain thereby should be permitted to institute or intervene in litigation, and courts are not established to enable parties to litigate matters in which they have no interest affecting their liberty, rights or property.
[63]Ibid 143–4.
After considering the rules of 1895, including their references to persons ‘interested’ and ‘interested in the estate’, the judgment continued:[64]
It thus becomes apparent that a person ‘interested’ or ‘interested in the estate’ cannot enforce the bringing of an action in which he can dispute the validity of the will, unless he can show an interest sufficient to entitle him to object to the grant applied for.
How is the sufficiency of that interest to be determined? I know of no other way than by reference to the general body of probate law; and according to that law an interest sufficient to entitle a person to object to a grant must be some right of that person which will be affected by that interest.
[64]Ibid 145.
The Court went on to decide that the defendant had no right that could ‘possibly be affected by the grant of probate sought in this case’, and dealt with the intervention on similar grounds.[65]
[65]Ibid 145–6. It was further held that the defendant was not, in any event, a next of kin.
It can be seen that Re Devoy does not insist that a party challenging probate show a prima facie case in order to establish standing, only that he or she point to ‘some right of that person which will be affected by the grant’ or show that he or she has something ‘to gain’ from the litigation. As appears further below, the case is one of a number in which an unchallenged will stood between the will in dispute and an intestacy, thereby depriving those who would take on an intestacy, but not under the will in dispute, of standing in relation to that will. Put simply, persons in that situation have ‘nothing to gain’ by displacing the later will.
The ‘bare possibility of an interest’ test from Kipping v Ash was applied by Barry J in Re Gillard.[66] In that case the Crown Solicitor sought revocation of a grant of probate on the basis that probate had been obtained by a fraud on the court. Judgment was given on the return of an order nisi to show cause why the grant should not be revoked. Relevantly for present purposes, the Court considered whether the Crown had a sufficient interest to found the application and whether the correct procedure had been followed.
[66][1949] VLR 378.
In relation to the first issue, as noted above, Barry J cited Kipping v Ash, along with other authorities and textbooks, in holding that the bare possibility of an interest was sufficient to establish standing. As to the procedure, he observed that it was an advantage of the order nisi procedure that had been adopted that ‘it virtually mean[t] that the applicant ha[d] to get the leave of the Court to proceed with the application’.[67] Again, the question of standing and the showing of a prima facie case can be seen to be separate considerations.
[67]Ibid 382.
The judge in the present case also cited Edwards v Boyd in support of the prima facie case requirement.[68] The deceased there left three testamentary documents, one dated in 1950 and the others in 1951. The appellant was named as executor under the 1951 documents and stood to take the residue under those instruments, except that the final will was witnessed by him and as a result could have operated only to appoint an executor to distribute the estate as on an intestacy. The respondent was named as executor under the 1950 will. In earlier proceedings between the same parties, probate had been granted of the 1950 will and a grant of probate of the final will was revoked. The appellant brought fresh proceedings seeking to have probate of the 1950 will revoked and seeking probate of the intermediate will.
[68](1958) 75 WN (NSW) 525, cited in Reasons [24] n 22, [34] n 41.
In separate judgments, Street CJ, Owen J and Herron J dismissed the appeal on the basis that the efficacy of the 1950 will had been determined in earlier proceedings and the ground now relied upon was known to the appellant at the time of those proceedings.[69] This case does not appear to shed light on the test for standing to have a grant of probate revoked.
[69]Edwards v Boyd (1958) 75 WN (NSW) 525, 527–8 (Street CJ), 528 (Owen J), 528 (Herron J).
The judge also relied upon Re Egan.[70] The case concerned a caveat that had been refused for lodgement and corrected and presented again for filing only after the court order granting probate had been sealed. Herring CJ held that the caveat was of no effect. He continued:[71]
It is clear, however, that it is open to the caveatrix to seek revocation of the grant of probate. Probate as ordinarily granted in this Court is not final, it is not equivalent to probate per testes. [T]he appropriate procedure is by order nisi … . In order to obtain an order nisi for revocation the caveatrix is bound, I think, to make out a prima facie case. She would have to show that she has something to go upon in her opposition to the issue of probate.
[70][1963] VR 318, cited in Reasons [24] n 22, [34] n 41.
[71]Ibid 320 (citations omitted).
The Chief Justice went on to state that, if the parties consented, it might prove expeditious for an order nisi to be made calling upon the caveatrix to show cause why probate should not be granted. This would require her ‘to show, by affidavit, that she has something to go on, that her opposition is not merely frivolous and vexatious, not merely dilatory, but that there is a case for investigation’.[72] Again, it is clear that the question of showing a prima face case, or ‘something to go on’, was treated separately to the issue of standing to make the claim, which it was ‘clear’ existed.
[72]Ibid.
The remaining cases are all more recent. Re Culina[73] concerned an application for a grant of probate of a will by which the testatrix’s son was appointed executor and her niece was the sole beneficiary. The estranged wife of the son lodged a caveat and sought to contest subsequent proceedings brought by a solicitor for a grant of letters of administration with the will annexed. Under a preceding will, the son was named as sole beneficiary. It was accepted that the caveator had provided evidence sufficient to question the validity of the last will and to make it appropriate that the action proceed on a defended basis if she had the necessary interest.[74] The question was therefore not whether she had established a prima facie case, but whether she had an interest at all.
[73][2004] NSWSC 504.
[74]Ibid [7].
Windeyer J held that the caveator’s interest was too remote, being conditional upon an order being made in Family Court proceedings by which she might become entitled to part of her estranged husband’s inheritance.[75] In the course of reviewing the law governing standing in probate actions, he observed that probate litigation, being ‘interest litigation’ is ‘not to be undertaken or interfered in by outside busybodies’.[76] He cited Kipping v Ash for the proposition that ‘any interest or reasonable possibility of an interest, however remote, will be sufficient to entitle a person to become a party’.[77] He then said, in a passage adopted by the judge in the present case:[78]
although in earlier times it might have been held that next of kin entitled on intestacy had sufficient interest to challenge a will even if, in the event of a challenge succeeding, there was an earlier will not yet subject to dispute not benefitting the next of kin, that is no longer the position unless there is some evidence casting doubt upon the earlier will or wills as the grant or lack of grant will not be either beneficial or detrimental to the next of kin.
[75]Ibid [24].
[76]Ibid [10].
[77]Ibid [11].
[78]Ibid [12] (citations omitted).
This statement is consistent with Re Devoy in denying standing to a next of kin to challenge a will in circumstances where there is an undisputed intermediate will from which the next of kin would not benefit. It goes further, by requiring that the next of kin produce ‘some evidence casting doubt on the earlier will’. The respondents placed weight on this observation. It was said to show that the obstacle to standing identified in Re Devoy could only be overcome by showing, by evidence, some basis for disputing the preceding will. In a sense, the passage quoted above merely states what is obvious, namely that if an earlier will by which the next of kin does not benefit is ‘not yet subject to dispute’, the next of kin lacks standing unless a basis for dispute is identified. In so far as the passage suggests a requirement at the standing stage for evidence casting doubt on the earlier will or wills, the statement is plainly obiter for the reasons stated above. But the passage does not say in terms that evidence is required if the earlier will is already ‘subject to dispute’. However it is read, the passage therefore does not establish the proposition for which the respondents contended.
A more complex position than that in Re Devoy arose in Nicholson v Kollias.[79] Two cousins of the deceased sought to have probate of her will made in 2001 revoked. There was evidence of earlier wills made in 1999 and 1985. The cousins sought probate of the 1985 will, and sought to place evidence before the court to show that the deceased lacked testamentary capacity to make the 2001 will or the 1999 will. The executors challenged the standing of both plaintiffs.
[79][2005] VSC 473.
The first plaintiff was not a beneficiary under any of the wills. Harper J accordingly held that he lacked standing.[80] The second plaintiff was not a beneficiary under either the 2001 will or the 1985 will, but was named as a beneficiary of a sum of money under the 1999 will. Harper J held that she clearly had standing to challenge the 2001 will, so that she might take under the 1999 will. The fact that she also challenged the 1999 will did not alter the position, because, as a beneficiary, the second plaintiff had standing as she had ‘an interest in the proper devolution of the deceased’s testamentary estate’.[81] The case again reveals questions of standing being determined without reference to a prima facie case test, and is also instructive because it is an instance of more than one will being challenged after a grant of probate.
[80]Ibid [5].
[81]Ibid [15]; see generally at [14]–[15], citing Re Adcock (1906) 10 ALR 268.
The respondents also placed reliance on Van Wyk v Albon.[82] This was an application under r 23.01(1)(a) that the proceeding in question be dismissed.[83] The deceased left a will naming the defendant as executor and residuary beneficiary with a bequest of $50 to the plaintiff (the deceased’s son). Probate of the will was granted to State Trustees after the defendant did not seek a grant. The son commenced a proceeding seeking a declaration that the will was invalid and that the testatrix had died intestate. He affirmed an affidavit stating that the testatrix had suffered from dementia including when she made the will. In response to a subpoena, solicitors produced five earlier wills of the deceased, the most recent two of which named the defendant as the residuary beneficiary. None of the wills named the son as a beneficiary.[84]
[82][2011] VSC 120.
[83]Rule 23.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005 provided that, where a proceeding generally or a claim in a proceeding did not disclose a cause of action, the Court could stay the proceeding or give judgment in the proceeding, generally or in relation to any claim. That limb of r 23.01(1) has since been removed.
[84]Ibid [2]–[8].
In a short judgment, Habersberger J found that the son’s claim had no real prospect of success within the meaning of s 63(1) of the CPA and upheld the application for dismissal of the proceeding. There was no ground upon which the court could conclude that the son could stand to benefit from the setting aside of the final will. There was no suggestion that the testatrix had suffered from dementia when she made three of the earlier wills. Habersberger J stated that, ‘[u]nless it could be said that there was a prima facie case that each of the wills of the deceased could be set aside, it seems to me that the plaintiff, and his sister for that matter, have no standing to seek the revocation of the grant of probate’.[85] He relied, by analogy, on the decision of Sifris J in Wood v McLean,[86] where it was held that the plaintiffs, children of the deceased who were also applicants for family provision under pt IV of the Administration and Probate Act 1958, lacked standing to bring a proceeding seeking to have a transfer of real property from the deceased to his other child set aside. It can be seen that the result in Wood v McLean is not dissimilar to that in Re Culina. A mere expectation of obtaining a benefit from the estate did not suffice to confer standing to challenge the disposition in question (the transfer of land or the testamentary instrument respectively).
[85]Ibid [12].
[86][2010] VSC 550 [40]. Habersberger J earlier cited Re Seymour [1934] VLR 136 and Re Finn [1942] VLR 125, both of which have already been referred to: see [49] n 55, [51] above.
Although Habersberger J used the language of prima facie case, the judgment reveals that the plaintiff did not actually mount any challenge to a number of the earlier wills, which were prepared prior to the time from which, on his case, the deceased had dementia.[87] They stood as obstacles to him taking on an intestacy, just as in Re Devoy. Further, the nature of the application under consideration, being one seeking summary dismissal of the proceeding, and the application in that context of the ‘real prospect of success’ test, meant that the judge was inevitably required to look at the merits. The decision therefore does not materially assist in resolving the issues arising in this proceeding.
[87]Van Wyk v Albon [2011] VSC 120 [8].
The respondents relied in oral argument on Tobin v Ezekiel.[88] The daughters of the deceased sought revocation of probate of a will under which the deceased named her sons as executors and bequeathed her only significant asset to those sons. The daughters alleged that their mother had lacked testamentary capacity. The case failed at trial. On appeal the daughters argued that the trial judge had wrongly imposed an onus upon them to establish more than suspicious circumstances suggesting undue influence upon the testatrix. The issues in the case were therefore quite different from those now under consideration. However, the respondents highlighted the following passage from a textbook which was quoted by Campbell JA:[89]
Any person whose interest is adversely affected by a probate granted in common form may, without limitation as to time, issue a citation against the person who proved the will, calling upon him to bring in the probate and to show cause why the same shall not be revoked, and if, in the event, the will is not sufficiently proved, the probate will be revoked.
[88](2012) 83 NSWLR 757.
[89]Ibid 763 [11], quoting Clifford Mortimer and Hamish H H Coates, The Law and Practice of the Probate Division of the High Court of Justice (Sweet & Maxwell, 2nd ed, 1927) 424.
Campbell JA stated that the passage suggested that ‘once the court has been satisfied that there is a sufficient case to require the probate to be brought in, an onus of establishing the will shifts to the propounder’.[90] However, he went on immediately to say that many of the earlier cases, and the passage from the textbook itself, reflected particular rules of court for the conduct of probate practice.[91] The observation made regarding the showing of a ‘sufficient case’ must be read in that light.
[90]Ibid 763 [12].
[91]Ibid 763 [13]. This observation was cited with approval in Re Kouvakas [2014] NSWSC 786 [194] (Lindsay J).
Campbell JA pointed out that the governing rule of court in New South Wales required the plaintiff seeking revocation to file a statement of claim alleging facts which, if proved, will show that the plaintiff has standing to claim revocation of the grant.[92] Senior counsel for the first and second respondents submitted that, if standing were then challenged, evidence would be required to support standing. This was what was said to have happened in a case shortly to be considered, Re Kouvakas.[93] It was submitted that this reflected the Victorian rules as well. It is convenient to return to this issue when considering Re Kouvakas. It will be seen that, as in Tobin v Ezekiel, Re Kouvakas lays down no rule that standing must be shown by a prima facie case for the relief sought.
[92]Tobin v Ezekiel (2011) 83 NSWLR 757, 763 [13].
[93][2014] NSWSC 786.
The Court was also taken to Re Davies.[94] In that case a niece of the deceased, who was the principal beneficiary and executrix under a will made in 2012, obtained probate of that will. A sister of the deceased, who was not a beneficiary under the will, applied for revocation of the grant of probate. She filed an affidavit deposing, among other things, that the deceased had not signed the will, lacked testamentary capacity at the time it was made and had been subject to undue influence by the niece. In an affidavit in opposition filed by the niece, her solicitor deposed to an earlier will made in 2000, under which the sister was, again, not a beneficiary. No challenge was made to that earlier will.
[94][2013] VSC 609.
McMillan J held that the sister lacked standing because she was not named as a beneficiary under the 2000 will, which would become operative if the 2012 will were found to be invalid. In reaching that decision, she applied observations of Windeyer J in Re Culina to the effect that sufficiency of interest ‘depend[ed] upon whether the person seeking to challenge the document propounded [would] take a different benefit in the estate if the document [was] not admitted to probate.[95] Plainly, in the case at hand, the sister lacked any such interest.[96] Re Davies is therefore another application of the principle in Re Devoy, by which an applicant for revocation of probate lacks standing if there is an undisputed preceding will under which that applicant takes no benefit.
[95]Ibid [12], quoting Re Culina [2004] NSWSC 504 [15].
[96]Re Davies [2013] VSC 609 [14].
The next decision is Re Kouvakas.[97] The deceased made two wills, in 1993 and 2011. In the proceeding, the validity of the earlier will was not in issue. That will left the deceased’s estate to his wife or, upon his wife pre-deceasing him (as happened), to his stepchildren but not to his daughter. In contrast, the later will gave the estate to the daughter and made no provision for the stepchildren. In earlier, completed proceedings, letters of administration with the later will annexed were granted to the daughter. In a fresh proceeding, the deceased’s stepson sought revocation of that grant and an order for administration with the earlier will annexed. Before the court was a notice of motion by the daughter seeking that the statement of claim be struck out as an abuse of process or that the proceeding be dismissed on the same basis. By a second notice of motion, the stepson also sought to join his sister, a stepdaughter of the deceased, as a plaintiff. The stepson and his adult daughter deposed to facts suggesting that the deceased lacked testamentary capacity at the time of the later will and did not know or approve its contents. They had previously taken part in the proceedings in which administration had been granted with the later will annexed, and consented to the orders made in that proceeding. In the meantime, the stepson had also commenced family provision proceedings. One issue before the New South Wales Supreme Court was whether the earlier proceeding had involved proof of the later will in solemn form or in common form. Lindsay J treated it as having been a grant in common form,[98] although little ultimately appears to have turned on this.
[97][2014] NSWSC 786.
[98]Ibid [66].
Lindsay J permitted the joinder of the additional plaintiff but ordered that the revocation proceeding be dismissed in the interests of justice and the due administration of the estate of the deceased (execution of which had already commenced). This left the stepson, who had acquiesced in the grant of administration, held to his ‘deliberate decision’ to pursue his family provision application, and preserved the estate, which was small, from further litigation designed principally to pressure the daughter into a settlement rather than to serve the deceased’s testamentary intentions.[99]
[99]Ibid [343].
The case turned in large part on case management principles.[100] In a passage quoted by the trial judge in the present matter, Lindsay J said:[101]
Recent developments in court administration and techniques for the management of cases cannot be ignored upon the consideration of an application for revocation of an order of the Court (albeit an order in the character of a common form grant of administration) regularly made and entered in the records of the Court. The Court must control its own processes in the due administration of justice. The probate jurisdiction has its own dynamic, but it is not immune to broader concerns about the administration of justice.
[100]Ibid [288], [318]–[321].
[101]Ibid [202], quoted in Reasons [29].
In that vein, Lindsay J stated that the central object of the court in the exercise of probate jurisdiction, and in dealing with applications for the revocation of a grant in particular, was the due and proper administration of the estate.[102] To commence or be a party to proceedings relating to a particular estate required a person to show that his or her rights will, or may, be affected by the outcome of the proceedings.[103] It was important to appreciate that, since probate litigation is ‘interest’ litigation, its central focus is rights to property.[104]
[102]Re Kouvakas [2014] NSWSC 786 [211].
[103]Ibid [212], citing cases including Re Devoy [1943] St R Qd 137, 145–6 (Philp J; Webb CJ and Mansfield J agreeing).
[104]Re Kouvakas [2014] NSWSC 786 [212]–[217]; see also at [230]–[233].
In the course of examining the nature of a grant in solemn form, Lindsay J referred to the Court’s ‘abiding concern to ensure that estate litigation is managed in an orderly manner, on notice to interested persons, with an insistence that a prima facie case be able to be demonstrated, if required, before an issue is permitted to go to a final hearing’.[105] This occurred by operation of the caveat procedure, but such a result could also be achieved simply by ‘a directions hearing on which the Court required each party to produce evidence bearing upon the existence or otherwise of a prima facie case of an issue tendered for trial’.[106] Later, Lindsay J stated that ‘before any revocation order is made, the Court may require evidence of a prima facie case that the will the subject of the grant is invalid’.[107]
[105]Ibid [242].
[106]Ibid [245].
[107]Ibid [310].
The above observations were not directed to questions of standing, but to proper case management. A requirement that a prima facie case be shown before a matter proceeds to a final hearing, whether imposed by rules of court or judicial direction, might be thought to presuppose that standing has by that stage been established. But in any event, Lindsay J does not suggest that such a requirement is an element of standing. His observations do not even imply that a prima facie case must always be shown before a revocation application goes to trial. That is rather a matter for the rules of court and the trial judge in every case.
In the end, Lindsay J held that, ‘whether or not’ the stepson could be said to have established a prima facie case of invalidity of the later will, his application for a revocation order was an abuse of process.[108] It can be seen that the decision does not advance the inquiry as to the requirements that must be met to establish standing in an application to revoke a grant.
[108]Ibid [340].
The final decision for consideration is Re Cockell.[109] Probate of the deceased’s will made in 2006 was granted to his solicitor. The will named a charity as the sole beneficiary. A maternal aunt of the deceased, entitled to participate in the estate in the event of an intestacy, attacked the validity of the will on the basis that the deceased lacked testamentary capacity and did not know or approve the contents of the will. Three earlier wills were identified. A will made in 2004 left the whole of the estate to Queen Fabiola of the Belgians. A will of 1983 left the estate to a clergyman and a will of 1982 left the estate to the then wife of the deceased. The aunt contended that all of the wills were invalid for want of testamentary capacity.
[109][2016] NSWSC 349.
Lindsay J held, after a ‘hotly contested’ hearing, that the application for revocation should be dismissed.[110] He held that the solicitor bore the onus of propounding the will. In the course of explaining why that was so, he noted:[111]
an applicant for revocation of a grant (not unlike an applicant for the setting aside of any judgment or order of the Court) must generally persuade the Court that the applicant has: (a) a reasonably arguable case for a grant of representation other than that under challenge; and (b) an explanation for delay in advancing a case for that alternative form of grant.
[110]Ibid [18].
[111]Ibid [53], citing Vacuum Oil Pty Co Ltd v Stockdale(1942) 42 SR (NSW) 239, 243–4 (Jordan CJ; Davidson and Roper JJ agreeing) and Tobin v Ezekiel (2012) 83 NSWLR 757, 761–4 [3]–[18] (Campbell JA).
Again, these observations as to onus were not expressed as a threshold standing requirement but were made in the course of dealing with the case on the merits. As to standing, Lindsay J went on to refer to the well‑established principle that, probate litigation being ‘interest’ litigation, an applicant for revocation must be able to show that their rights ‘will, or may, be affected by the outcome of the proceedings’.[112] However, again no question of standing arose. The court upheld the validity of the final will and refrained from making any finding as to the validity of the earlier wills. By implication, the plaintiff had standing to challenge all the wills by virtue of potentially taking on an intestacy, but how that standing was to be tested or established was not in issue.
[112]Re Cockell [2016] NSWSC 349 [54].
Even if interpreted as going to questions of standing, however, Lindsay J does not say, in the passage quoted above, that an applicant for revocation must show a prima facie case for concluding that the impugned will is invalid. Nor, contrary to the trial judge’s interpretation of the statement, does he say that the applicant must show a prima facie case for challenging the grant.[113] Instead, the applicant must
show a case that, by way of alternative to the grant, he or she would be entitled to a grant of representation. Moreover, the principle only applies ‘generally’. That is to say, there may be situations in which an applicant cannot show a basis for a grant of representation, but can show a possible interest as a beneficiary. In either case, the applicant thereby shows that his or her rights ‘will, or may, be affected by the outcome of the proceedings’. In Re Cockell itself, that entailed the plaintiff showing that she stood to benefit on an intestacy if all the wills she challenged in the proceeding were found invalid.
[113]Cf Reasons [24].
Conclusion
It can be seen that very few of the cases are directly concerned with standing. The cases which refer to a prima facie case requirement are either contested trials[114] or applications for summary disposition,[115] or are concerned with the requirements for permitting a matter to go to trial.[116] References to the need for a prima facie case in those contexts are unsurprising, but they do not inform the question of standing.[117] The observations in Re Culina, which were made in a different context, are not determinative for the reasons already stated.
[114]Tobin v Ezekiel (2011) 83 NSWLR 757; Re Cockell [2016] NSWSC 349.
[115]Van Wyk v Albon [2011] VSC 120; Re Kouvakas [2014] NSWSC 786.
[116]Re Seymour [1934] VLR 136; Re Egan [1963] VR 318; Re Cockell [2016] NSWSC 349.
[117]Cf Re Watson; Raitman v Ivey [2017] VSC 322 [15] (McMillan J), setting out three threshold requirements on an application for revocation: standing, explanation for delay and a prima facie case. The judge dealt with the requirement of standing separately from the requirement for a prima facie case: see at [19], [24]–[45].
Several principles emerge from this survey of the authorities.
First, in order to establish standing, an applicant for an order revoking a grant of probate or letters of administration must have a sufficient interest in the proceeding.[118] Sufficiency of interest is established by showing that the applicant’s rights would or might be affected if the grant were to be revoked.[119] The bare possibility of an interest will suffice.[120]
[118]Re Devoy [1943] St R Qd 137.
[119]Re Cockell [2016] NSWSC 349; Re Kouvakas [2014] NSWSC 786.
[120]Kipping v Ash (1845) 1 Rob Ecc 270; 163 ER 1035; Re Gillard [1949] VLR 378; Re Culina [2004] NSWSC 504. See also Randall v Randall [2016] EWCA Civ 494.
Secondly, where the validity of more than one will is in issue, the applicant must establish standing by showing that his or her rights would or might be affected if the grant were to be revoked and the disputed wills were found to be invalid.[121] Conversely, if there is a prior, undisputed will under which the applicant would derive no benefit, the applicant will lack standing to challenge the grant made in respect of the later will.[122]
[121]Van Wyk v Albon [2011] VSC 120.
[122]Re Devoy [1943] St R Qd 137; Re Culina [2004] NSWSC 504; Re Davies [2013] VSC 609.
Finally, although an application for revocation is made in the proceeding in which probate or letters of administration were granted, there are cases in which the validity of more than one will has been put in issue in the same proceeding.[123] Alternatively, prior wills might be in dispute in separate proceedings. By whatever procedural means the dispute has been raised, the principles stated above operate in the same manner.
[123]Nicholson v Kollias [2005] VSC 473; Van Wyk v Albon [2011] VSC 120; Re Cockell [2016] NSWSC 349. However, the question whether multiple wills may be impugned in one proceeding does not appear to have been in issue in these cases.
Probate courts have often required a party challenging a grant of probate to show a prima facie case at an early stage of proceedings, in recognition of the significant implications of upsetting a grant.[124] However, such a requirement does not apply automatically and the stage, if any, in a proceeding dealing with an application for revocation at which the applicant may be required to establish a prima facie case for revocation, or a real prospect of success, is governed by rules of court and such directions as the court may make consistent with the CPA.[125]
[124]Re Seymour (1881) 7 VLR 86; Re Devoy [1943] St R Qd 137; Re Gillard [1949] VLR 378; Re Egan [1963] VR 318; Re Culina [2004] NSWSC 504; Tobin v Ezekiel (2011) 83 NSWLR 757; Re Cockell [2016] NSWSC 349.
[125]Re Seymour (1881) 7 VLR 86; Re Egan [1963] VR 318; Tobin v Ezekiel (2011) 83 NSWLR 757; Re Kouvakas [2014] NSWSC 786.
Applying these principles to the present case, the appeal must succeed. Although the underlying proceeding had concerned only the 2015 will, in respect of which probate was granted, the applicants by their summons sought to challenge each of the wills of the deceased. There was evidence that, if they were to succeed in that endeavour, they would participate in the estate on an intestacy. The question before the Court was not whether the claims should be summarily dismissed, nor had the Court required the applicant to show a prima facie case during the course of the proceedings, in the manner described above. The preliminary question was confined to the issue of standing. Because the applicants stood to benefit if the claims they made in their summons were upheld, they had standing to pursue that summons. That was so, both in so far as the applicants sought to achieve a full intestacy upon invalidity of all the wills, and since they sought a partial intestacy in the alternative by impugning the position of the second respondent if the 2015 will were valid.
Nothing in the CPA alters this conclusion. Even where there is merit in requiring a party before trial to establish a prima facie case, there is no occasion to do so in the absence of any prior application or direction in that regard. If anything, the CPA assists the applicants because it stands against the rigid application of rules of procedure in preference to ensuring that the real issues in dispute are determined. In that way, the CPA tells against the submissions of the third respondent, in particular, which treated the fact that a revocation proceeding ordinarily deals only with the validity of the will of which probate was sought as a strict limitation on the matters which the parties could raise, or the court could determine, in such a proceeding. The aim of just and efficient resolution of the real issues in dispute indicates that no such rigid approach is to be taken.
That is not to say that the observations of the third respondent about the procedural difficulties that this case presents are without merit. For example, to introduce challenges to prior wills into a proceeding may well have implications for the proper parties to the proceeding. The amended summons in the present case illustrates the point. As the trial judge pointed out, where more than one will is in issue, the validity of the last will is ordinarily determined first and the others fall for consideration in turn only if there is no valid will established at that point.[126] It may ultimately appear that separate proceedings, heard together or otherwise, would more efficiently enable the real issues in dispute to be decided. But these are issues to be decided by the trial judge at a later date. So far the present case has progressed no further than the amended summons and the preliminary question of standing which it presented and with which this appeal has been concerned.
[126]Reasons [36].
Orders
Leave to appeal should be granted. The appeal should be allowed and the orders of the trial judge set aside. In their place it should be declared that the first to third defendants have standing to pursue the relief sought in the amended summons.
The proceeding will thereafter proceed in the Trial Division. Whether the applicants are called upon to establish a prima facie case or a real prospect of success before the matter is permitted to proceed to trial will depend upon any applications made by the parties, and any directions given by the trial judge, in the proceeding.
- - -
SCHEDULE
JAMES ALEXANDER GARDINER
First Applicant
and
SARAH JANE BORRACK
Second Applicant
and
CHARLES GEORGE GARDINER
Third Applicant
v
LACHLAN OWEN STUART HUGHES
First Respondent
and
KERRIE LOUISE SLES
Second Respondent
and
ZOE MAY SLES, a minor, by her litigation guardian KERRIE LOUISE SLES
Third Respondent
26
14
0