1. Orders that the Will dated 13 June 2017 of Robert Shallcross Hulme (“the deceased”) be admitted to probate.
2. Orders subject to compliance with the Probate rules of Court that probate in solemn form of the Will dated 13 June 2017 of the deceased be granted to the Plaintiffs, Mark Shallcross Hulme and Suzette Rosila Hulme, the instituted executors named in the deceased’s Will.
3. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.
4. Orders that the Defendant pay the costs, calculated on the indemnity basis, of the proceeding, from 31 January 2023; otherwise, he should pay their costs, calculated on the ordinary basis, of the proceeding.
5. Orders that to the extent that any costs are not recovered from the Defendant, the Plaintiffs’ costs, calculated on the indemnity basis, be paid out of the estate of the deceased.
Catchwords:
CIVIL PROCEDURE — Hearing – Defendant litigant in person – Adjournment – Where the Defendant applies for adjournment by email sent at 1:00 a.m. on the date of the hearing – Non- appearance by the Defendant at the hearing - Application opposed at the hearing – Applicable principles – Procedural history relevant as are repeated suggestions made to the Defendant, at various directions hearings that he should be legally represented – Whether to grant the application — Interests of justice – Application for adjournment refused
SUCCESSION – Uncontested application for Probate – Defendant, adult son of the deceased files caveat which lapses through effluxion of time – Statement of Claim filed by Plaintiffs – Defendant does not file an Appearance or any Defence although does send numerous emails to the Court and appears at some of the directions hearings – Many opportunities given to Defendant to file Defence and also the evidence to support his assertion that Will not valid – Failure to do so – Evidence that Will duly executed – Notice of motion filed seeking grant of Probate in solemn form - - Orders made
COSTS - Indemnity costs sought against a litigant in person – Whether such an order should be made
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Hulme v Hulme [2023] NSWSC 299
Case
[2023] NSWSC 299
Decision Date
CaseChat Overview and Summary
The matter before the court involved an application for probate of the will of a deceased person. The plaintiffs sought to have the will admitted to probate in solemn form. The defendant, the deceased's adult son, had filed a caveat which subsequently lapsed due to the passage of time. Despite multiple opportunities to do so, the defendant failed to file a defence or any evidence to support his claim that the will was not valid. Instead, the defendant sent numerous emails to the court and attended some of the directions hearings. The court was required to decide whether the application for probate should be granted, whether an adjournment should be allowed, and whether an order for indemnity costs should be made against the defendant.
The court considered the principles applicable to granting an adjournment, particularly in the context of a defendant who was a litigant in person. The court noted the defendant's failure to appear at the hearing despite an application for adjournment made by email at 1:00 a.m. on the day of the hearing. The court also considered the repeated suggestions made to the defendant at various directions hearings that he should be legally represented. The court concluded that the application for adjournment should be refused in the interests of justice, given the defendant's non-appearance and failure to provide a valid defence or evidence to support his claims.
The court then proceeded to grant the application for probate in solemn form, as the evidence demonstrated that the will had been duly executed. The court also considered the application for indemnity costs against the defendant. The court found that such an order should be made, as the defendant had acted unreasonably by not filing a defence or evidence and had wasted the court's time with numerous emails and by appearing at some of the directions hearings. The court ordered the defendant to pay the plaintiffs' costs of the proceedings on an indemnity basis.
The court's final orders were that the application for probate in solemn form be granted, the application for adjournment be refused, and the defendant pay the plaintiffs' costs of the proceedings on an indemnity basis.