Magiera v Cekan - [2023] SASC 20

Supreme Court of South Australia
(Testamentary Causes Jurisdiction)
MAGIERA & ANOR v CEKAN
[2023] SASC 20
Judgment of the Honourable Justice Stanley
6 March 2023
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS – CIRCUMSTANCES – DISCOVERY OF WILL AND INVALIDITY OF WILL
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - PROOF IN SOLEMN FORM
This is an application by the respondent for the revocation of a grant of probate in solemn form of a will of the deceased made in 2016, on the ground that the deceased made a subsequent valid will in 2018.
The applicants are the executors of the 2016 will. The respondent is named as the sole executor and residuary beneficiary of the 2018 will.
The applicants applied for a grant of probate in respect of the 2016 will on 20 April 2022. Unsuccessful attempts were made to serve that application on the respondent, and following an application for an order for substituted service, substituted service was effected on 31 May 2022.
On 29 July 2022 a grant of probate in solemn form of the 2016 will was made in favour of the applicants. The respondent denies receiving actual notice of the application for the grant of probate before this date.
Held:
1. The application for revocation of the grant of probate in solemn form of the 2016 will is refused.
2. The question of costs is reserved.
Acts Interpretation Act 1954 (Qld) s 39(1); Administration and Probate Act 1919 (SA) s 122; Electronic Communications Act 2000 (SA) ss 5(1), 13A(1)(a); Legislation Interpretation Act 2021 (SA) ss 4, 51; Supreme Court Act 1935 (SA) s 72, referred to.
Battiste v Mulvaney [1997] SASC 6419; BP Australia Ltd v Brown (2003) 58 NSWLR 322; Cameron v Cole (1944) 68 CLR 571; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Lind v Legal Profession Conduct Commissioner [2022] SASC 20; Mortimer v David; Estate of Dawn Audrey Day (Deceased) [2005] NSWSC 1166; Re Barraclough, Deceased [1967] P1; Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040; Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786; Re Goode (1890) 11 NSWR (Eq) 281; Re Izett [1982] 2 NZLR 425; Re Levy, Deceased [1953] VLR 652; Richardson v Rearden [2006] NSWSC 1252; Stanley v Stanley [2000] NSWSC 1133; Taylor v Taylor (1979) 143 CLR 1; The Estate of Rogers; Rogers v Rogers [2009] WASC 358; Tobin v Ezekiel (2012) 83 NSWLR 757; Neilson v Public Trustee (Supreme Court of New South Wales, Powell J, 8 May 1992); Willis v Earl Beauchamp (1886) 11 PD 59, considered.

MAGIERA & ANOR v CEKAN
[2023] SASC 20
Introduction

The respondent has brought proceedings for the revocation of a grant of probate in solemn form of a will of the testator, Michael Kowalczyk (the deceased), dated 28 September 2016 (the 2016 will). That grant was made on 29 July 2022. The respondent also has sought an order that the Court pronounce the force and validity of the last will and testament of the deceased dated 20 April 2018 (the 2018 will). The parties have asked the Court to decide the revocation application separately from and before any trial to determine the validity of the 2018 will.
The deceased died on 30 June 2021. The 2016 will appoints the applicants as his executors and directs them to hold his estate upon trust in two equal parts for the Polish Christian Church Incorporated and the Voice of the Martyrs Australia Ltd. The applicants are senior members of the Polish Christian Church. The principal asset of the estate is the deceased’s former residence at 10 Trimmer Parade, Woodville West. In addition, there are two bank accounts. The value of the estate assets is estimated at less than $600,000.
The respondent seeks the revocation of the grant of probate on the ground that the deceased made a subsequent valid will, namely, the 2018 will.
The 2018 will appoints the respondent as the sole executor and bequeaths the sum of $25,000 each to the Polish Christian Church Incorporated and the Voice of the Martyrs Australia Ltd. The respondent is the sole residuary beneficiary of the 2018 will.
The applicants allege that the 2018 will is not valid because the deceased lacked testamentary capacity at the time it was made. The applicants lodged a caveat, issued on or about 11 August 2021, which prevented a grant of probate in favour of the respondent in respect of the 2018 will. The caveat was renewed on 13 January 2022 and was due to lapse on 13 July 2022.
On 20 April 2022, the applicants applied for a grant of probate in respect of the 2016 will. Attempts were made to serve that application on the respondent. They were unsuccessful. Accordingly, the applicants applied for an order for substituted service which the Court granted on 26 May 2022. Substituted service was effected on 31 May 2022.
On 29 July 2022, the grant of probate in solemn form of the 2016 will was made in favour of the applicants. The respondent denies receiving actual notice of the application for the grant of probate before this date. His evidence in that regard is challenged by the applicants.
The issues
At issue is whether the respondent is bound by the order granting probate in solemn form of the 2016 will. The respondent contends that critical to that issue is whether he had actual notice of the application for a grant of probate in respect of the 2016 will before that grant was made. There is no dispute that substituted service was effected on the respondent by the applicants in accordance with the order made by this Court. The respondent’s position is that, notwithstanding substituted service having occurred, he did not have actual notice of the application and that as he has a relevant interest in the grant, in the sense that his rights will, or may, be affected by the outcome of the proceedings, he is entitled to contest the grant of probate in respect of the 2016 will so as to permit him to propound the 2018 will. The respondent contends that he has acted promptly to revoke the grant in respect of the 2016 will in circumstances where probate in solemn form was granted to the applicants without him having actual notice of their application and an opportunity to be heard. He submits that this is sufficient for the Court to order revocation of the solemn form grant made in favour of the 2016 will.
That gives rise to five intermediate issues. For the purpose of revocation:
i.is it necessary that the respondent has actual knowledge of the application for a grant in solemn form;
ii.if so, has the respondent disproved actual knowledge;
iii.if not, is it necessary that the respondent is actually served with the application;
iv.if so, was he actually served – does service include receipt; and
v.if not, is substituted service sufficient.
The affidavit evidence
The Court received the following affidavits:
·Affidavit of Igor Cekan dated 6 October 2022;
·Affidavit of Igor Cekan dated 6 October 2022 and the exhibit IC3 in the possession proceedings;[1]
[1] On 15 August 2022, the applicants’ solicitors filed an originating application seeking a finding that they are entitled to possession of the deceased’s property.
·Affidavit of Igor Cekan dated 25 October 2022;
·Affidavit of Igor Cekan dated 26 October 2022;
·Affidavit of Igor Cekan dated 6 October 2022 – In the possession proceedings;
·Affidavit of David eoffrey Chambers of Proof of Service dated 2 June 2022;
·Affidavit of Madeleine Phoebe Alexander dated 13 September 2022;
·Affidavit of James Brendon Kearney dated 13 September 2022;
·Third Affidavit of Madeleine Alexander dated 5 October 2022 – In the possession proceedings;
·Affidavit of Jonasz Magiera dated 8 April 2022;
·Affidavit of Jason Sam Coluccio dated 26 May 2022;
·Affidavit of Colin Andrew Dale of Proof of Service dated 2 June 2022;
·Affidavit of David Geoffrey Chambers of Proof of Service dated 2 June 2022;
·Affidavit of Georgia Paige McHugh of Proof of Service dated 10 June 2022;
·Affidavit of Gregory Neil Welden dated 21 July 2022;
·Affidavit of Justin Lewis Piro dated 18 October 2022;
·Affidavit of Brenton Joraslafsky dated 19 October 2022;
·Affidavit of Colin Andrew Dale dated 19 October 2022;
·Affidavit of Daniel Jez dated 19 October 2022;
·Affidavit of Arthur Wojtyna dated 18 October 2022;
·Affidavit of David Geoffrey Chambers dated 27 October 2022.
Uncontested factual findings
On 20 April 2022, the applicant’s solicitors filed an originating application to pronounce the force and validity in solemn form of the 2016 will. By that time the respondent was residing at the deceased’s property at 10 Trimmer Parade, Woodville West (the deceased’s property). Unsuccessful attempts were made by the applicants’ solicitor to serve the application personally on the respondent at the deceased’s property on 1 May, 2 May, 3 May and 10 May 2022.
On 18 May 2022, a process server, retained by the applicants’ solicitors, attended at the deceased’s property to serve the application on the respondent. The process server alleges that he spoke to a person named Alex at the property who advised him that the respondent was currently in Queensland but typically resided at an address in Tea Tree Gully. That proved to be a reference to a property at 59 Chapel Road, Modbury at which the respondent had resided before he moved to the deceased’s property.
On 26 May 2022, this Court made orders for substituted service on the respondent.
In accordance with the order for substituted service, on 31 May 2022 a process server left a copy of the application in the letterbox at 10 Trimmer Parade, Woodville West; at the door of 59 Chapel Road, Modbury; and at the door of 10 Byron Place, Adelaide. On that day, the application was also emailed to a solicitor, Mr Leonardis of Minter Ellison, solicitors for the respondent. At this time, Mr Leonardis was no longer employed by Minter Ellison. He had ceased employment on 17 December 2021. His emails were monitored by an executive assistant at Minter Ellison until 15 April 2022 when she ceased employment. Thereafter Minter Ellison inexplicably failed to monitor Mr Leonardis’ email address until it was deactivated on 4 July 2022.
On 13 July 2022, Minter Ellison undertook investigations into the probate caveat over the deceased’s estate. On 15 July 2022, Minter Ellison learned that the application for a grant of probate in solemn form of the 2016 will had been made by the applicants.
On 20 July 2022, Minter Ellison requested a copy of the Court record for the application for probate of the 2016 will. Minter Ellison received the Court record on 22 July 2022. On the same day an Auxiliary Master of this Court made the order for the force and validity of the 2016 will.
The Auxiliary Master of this Court gave the following reasons for granting probate in solemn form to the 2016 will:
This is a probate action seeking an order for a document dated 28 September 2016 to be admitted in solemn form. The original will has been provided to me and I will consider the evidence filed in support in chambers. Counsel for the applicant [sic] has explained that extensive attempts have been made to correspond and serve the respondent, who is also the executor and major beneficiary in a later document. However, those attempts have been unsuccessful. I also note that the applicants believe that the later document is held by the respondent and has only been sighted by them. The Court does not hold the original later document.
Michael Kowalczyk late of 10 Trimmer Parade Woodville West 5011 died at Woodville West on 30 June 2021 (the Deceased). The Deceased executed a will during his lifetime dated 28 September 2016 (the Penultimate Will). Pursuant to the terms of the Penultimate Will, the Deceased appointed the Applicants as his executors and trustees. He gave the residue of his estate equally to the Polish Christian Church Incorporated and the Voice of the Martyrs Limited. The Deceased then executed a later will dated 20 April 2018 (the Last Will). Pursuant to the terms of the Last Will, the Deceased appointed the Respondent as his executor and trustee. He gave a legacy of $25,000 each to the Polish Christian Church Albert Park and Voice of the Martyrs Australia. He then gave the residue of the estate to the Respondent. The Penultimate will has been provided to the Court, but it is believed that the Last Will remains in the possession of the Respondent. The Respondent has been served with the Proceedings but has not entered an appearance, nor filed a notice of acting. Furthermore, there is no evidence before this Court to contradict the evidence filed by the Applicant. Accordingly, I am satisfied that based on the evidence that has been filed in the Proceedings, the Penultimate Will should be admitted to proof.
On 29 July 2022, the grant of probate in solemn form of the 2016 will was granted to the applicants.
The respondent’s evidence regarding notice
This being an application for revocation of a grant in solemn form, the respondent carries a forensic onus to displace findings expressly or impliedly made by the Court as a foundation for the grant.[2]
[2] ReEstate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [301].
The respondent gave evidence that from late April 2022 until 9 May 2022 he was in Queensland. The respondent further gave evidence that on 11 May 2022 he travelled from Adelaide to Canada. He was overseas until he returned to Adelaide on 5 October 2022. The respondent says he did not receive a legible copy of the originating application prior to probate being granted in respect of the 2016 will. While he concedes he may have seen documents left at the deceased’s property, his evidence is that they had been exposed to the elements and rendered illegible.
Having heard the respondent give evidence and having considered the other evidence tendered on this application, including, in particular, the documentary evidence of his travel, I am not prepared to reject the respondent’s evidence that he did not receive legible notice of the originating application for a grant of probate in solemn form in respect of the 2016 will prior to probate being granted.
While there are grounds that excite suspicion in relation to aspects of the respondent’s evidence, I accept his submission that by having instructed solicitors to act for him in 2021 in relation to the dispute over which will should be admitted to probate, there is little sense in him deliberately trying to avoid being served with proceedings that would bring that very question before a Court for resolution. That compelling consideration leads me to accept the respondent’s evidence that he did not receive actual notice of the originating application, in the sense of a notice that was legible and therefore intelligible for the purpose of notice.
Accordingly, the issue is whether the Court should revoke that grant of probate on the ground that the respondent did not have actual notice of the application. In turn, that requires consideration of the question of whether the respondent is taken to have been given notice of the application by dint of substituted service of the application having been effected.
The question can be distilled to the distinction between formal service of the proceedings and actual knowledge of the proceedings.
This turns on a consideration of the applicable legal principles.
Applicable legal principles
It is well to commence with a consideration of the exercise of the Court’s jurisdiction to make and revoke grants of probate. The central object in the exercise of the probate jurisdiction generally, and in dealing with applications for the revocation of a grant of probate in particular, is the due and proper administration of the particular estate.[3] Probate litigation is “interest litigation”.[4] A grant of probate in solemn form is distinguished from a grant of probate in common form by its designation, process and effect. A solemn form grant is a contentious grant as opposed to a common form grant which is non-contentious. The making of a solemn form grant requires that all persons interested in the application have been given notice of the proceedings.[5] A will is proved in solemn form when it is propounded in an action where all parties interested in the application have been given notice and the Court rules on validity after hearing evidence.[6] A grant in solemn form is a final determination against the whole world, not irrevocable but a judgment in rem not readily revoked.[7]
[3]     Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [211].
[4] Ibid [212].
[5]     Mortimer v David; Estate of Dawn Audrey Day (Deceased) [2005] NSWSC 1166 [28].
[6]     Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [222].
[7]     Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 [23]-[25].
Upon determination of an application for a grant, the Court has a discretion about whether the grant should be made in common form or in solemn form. That discretion must be exercised judicially, having regard to whether all persons interested in the estate have had notice of the proceedings and whether there is sufficient evidence before the Court of the validity of any will proposed to be made the subject of a grant to justify an order for a grant in solemn form.[8] An order for a grant in solemn form is generally made only after the Court has received evidence tending to satisfy it that a form of administration “binding the whole world” should be made.[9]
[8] Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [236].
[9] Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 [24]-[25].
It is implicit in the consideration of any application for a grant in solemn form, including an application heard on an ex parte basis, that the applicant prove:
(a)the identity of each person adversely affected by the application;
(b)that each person adversely affected has notice of the application; and
(c)that any will or codicil sought to be proved was duly executed.
These are generally regarded as the elements necessary to be proved for a grant in solemn form.[10]
[10] Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [239]-[240].
A grant in solemn form is a judicial statement that on the Court’s assessment:
(a)all persons interested in the making of a grant, and particularly, those with an interest adverse to the making of a grant, have been allowed a fair opportunity to be heard, with a consequence that principles about the desirability of finality in the conduct of litigation should weigh heavily on any application for revocation of the grant;
(b)the Court is satisfied on the evidence that the particular grant represents, consistently with the law’s requirement that testamentary intentions be expressed formally, an expression of the deceased’s last testamentary intentions, if any; and
(c)an order for a grant in solemn form appropriately serves the due administration of justice.[11]
[11] Ibid [249].
The requirement of notice is critical. Unless all materially interested persons have been given due notice, an effective grant in solemn form cannot be made because an unnotified, absent person entitled to notice is likely in the ordinary course, by reason of non-notification, to have a reasonable prospect of success on an application for a revocation order. Further, if all the interested parties appear before the Court or are demonstrated to have been given sufficient notice of the proceedings so as to be bound by any determination of the Court, the Court may have greater latitude than otherwise would be the case on an assessment of the evidence upon which a determination about a testator’s testamentary intentions, if any, is to be made.[12]
[12] Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [251].

In Re Estate Kouvakas; Lucas v Konakas Lindsay J said:[13]
A grant in solemn form is binding on the parties to the probate suit in which it is granted, on anyone who has been cited to see the proceedings (or, in the language of the current Probate Rules, given formal notice of the proceedings), and also on anyone of full capacity who has an interest in the suit, and knows of the proceedings, but chooses not to intervene.
[13] Ibid [258].
An order for revocation of a grant is a discretionary judgment. A grant in solemn form may be set aside if made in the absence of an interested party prevented from participation in a hearing culminating in the making of the grant.[14] This accords with the broader notion of natural justice inherent in judicial proceedings.[15]
[14] Mortimer v David; Estate of Dawn Audrey Day (Deceased) [2005] NSWSC 1166 [28]; Re Barraclough, Deceased [1967] P1, 11; Re Izett [1982] 2 NZLR 425, 427-429.
[15] Taylor v Taylor (1979) 143 CLR 1, 4-5, 7-8, 20 and 22.
But a grant in solemn form can be made notwithstanding the absence of any contest.[16] The critical factor is service of notice of the proceedings on all interested persons.[17]
[16] Re Levy, Deceased [1953] VLR 652.
[17] Mortimer v David; Estate of Dawn Audrey Day (Deceased) [2005] NSWSC 1166 [28]; Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [296].
In Re Dowling; sub nom NSW Trustee & Guardian v Crossley, Young AJ said that a grant in solemn form will not bind a non-party to the action unless he or she had notice of the proceedings and had a right to intervene.[18]
[18] [2013] NSWSC 1040 [24].
It can be seen that these principles, derived from the case law in relation to persons who are bound by a grant of probate in solemn form, were decided in circumstances factually distinguishable from this case. Generally speaking, the authorities were concerned with whether notice had been given to a person with an interest in the outcome of the proceedings. By way of contrast, this case is concerned factually with circumstances where a person whose interests were adversely affected by the outcome of the application was given notice by the applicants serving notice on the respondent or in accordance with the Court’s order for substituted service. However, while the evidence is sufficient to prove that the respondent was given notice, he did not have knowledge of the fact of the originating application having been brought. That lack of knowledge denied him the opportunity to be heard. The respondent submits that this constitutes a sufficient basis to order revocation. That is where the legal contest is joined.
Service of Court documents is the means by which they are brought to the attention of the parties to legal proceedings. Service, especially of originating applications, is no mere formality. The right to a fair trial demands that every litigant should have timely notice of any proceedings that affect his or her interests, and a reasonable opportunity to respond.[19] A party that has not been appropriately notified is entitled to have any decision made in his or her absence set aside.[20] The principle underlying the requirement of notification extends beyond the parties to the proceedings. A court will not adjudicate matters which affect the interests of third parties in the absence of those third parties.[21] However, there is a conceptual distinction between one person’s act of service, and another person receiving notice of the proceedings.[22]
[19] Adrian AS Zuckerman et al, Zuckerman on Australian Civil Procedure (Lexis Nexis Butterworths Australia, 2018) 177 [5.1].
[20] Cameron v Cole (1944) 68 CLR 571, 584, 589-591.
[21] BP Australia Ltd v Brown (2003) 58 NSWLR 322 [133]-[134].
[22] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 96-97.
Service can be made personally and non-personally. Non-personal service can be made pursuant to orders of the Court for substituted service. Non-personal service relies upon presumptions of notification which bridge the divide between service and notification. But as no rule of Court can displace the right to a fair trial, a party must be allowed to rebut a presumption of notification by proof that the document was not delivered.[23] However, proof that a document served on a person through delivery to his or her place of residence, or his or her solicitors, did not come to that person’s attention, is not proof that the document was not delivered.
[23] Ibid.
In Fancourt v Mercantile Credits Ltd (Fancourt) the High Court said:[24]
There is a line of cases, commencing with Reg. v. County of London Quarter Sessions Appeals Committee; Ex parte Rossi, which deal with the effect of proof of non-delivery where service by post is permitted and used, having regard to s. 26 of the Interpretation Act 1889 (U.K.). That section is the equivalent of s. 39(1) of the Queensland Acts Interpretation Acts. The effect of the cases appears to be that proof of non-delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of the post and cannot be established as having taken place at any other time. The consequence is that where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service, notwithstanding that service by post is in the circumstances permitted and the requirements of the Interpretation Act are observed: see Beer v. Davies; Hewitt v. Leicester Corporation; Saga Ltd. v. Avalon Promotions; A.I.S. Cathrineholm v. Norequipment; cf. Lombard Australia Ltd. v Mohrwinkel. It may be thought that there is an anomaly in such a result because it means that, notwithstanding the adoption of a permitted means of service, the service is nevertheless ineffective if there is proof of non-delivery. It is, however, unnecessary to pursue these decisions here save to remark that they are all cases in which delivery was disproved. Despite remarks in the judgments about non-receipt, it was non-delivery which was significant because the second limb of s. 26 of the Interpretation Act refers to proof of the contrary of delivery. As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post.
[citations omitted].
[24] Ibid.
Fancourt was concerned with s 39(1) of the Acts Interpretation Act 1954 (Qld). The equivalent provision is s 51 of the Legislation Interpretation Act 2021 (SA). Section 51 provides:
51—Service of documents
(1) This section applies if an Act or a legislative instrument requires or permits a document to be served on a person (whether the expression "serve", "give", "provide", "deliver" or "send" or any other expression is used).
(2) The document may be served on an individual by—
(a)     delivering it to the individual personally; or
(b)     leaving it at, or posting it to—
(i) the physical address designated by the individual for the service of documents of that kind; or
(ii) if such an address is not so designated, the place of residence or a place of business of the individual last known to the server; or
(c)     sending it electronically to the individual in a manner designated, or agreed to, by the individual for the service of documents of that kind.
(3) The document may be served on a body corporate by—
(a)     leaving it at, or posting it to—
(i) the registered office of the body corporate; or
(ii) another physical address designated by the body corporate for the service of documents of that kind; or
(iii) if such an address is not so designated, a place of business of the body corporate last known to the server; or
(b)     sending it electronically to the body corporate in a manner designated, or agreed to, by the body corporate for the service of documents of that kind.
(4) A document is posted to an address by properly addressing, prepaying and posting the document as a letter.
(5) Unless the contrary is proved, service of a document by posting it to an individual or a body corporate is taken to be effected at the time at which the document would be delivered in the ordinary course of post for the postal service used.
Note— The time and place of service of a document sent electronically is to be determined in accordance with the Electronic Communications Act 2000.
The Probate Rules 2015 (SA) are a legislative instrument for the purposes of s 51(1).[25] Section 51 applies to the giving of notice on an application for a grant of probate. Rule 59 of the Probate Rules requires the provision of an address for service, being an address at a place where proceedings, notices and other documents may be left for a party.
[25] Legislation Interpretation Act 2021 (SA) s 4; Administration and Probate Act 1919 (SA) s 122; Supreme Court Act 1935 (SA) s 72.
Consideration
In this case, it is necessary to resolve the tension between the respondent’s lack of knowledge of the existence of the application for a grant of probate of the 2016 will, due to a series of unfortunate events, and the applicants’ observance of the requirements of substituted service imposed by the Court to bring to the notice of the respondent the fact of that application.
The giving or delivery of notice is a unilateral act. It does not necessarily imply the receipt of the notice. That is the distinction made in Fancourt.[26]In this case, notice was given, however, it was not effective to bring to the attention of the respondent the existence of the application for a grant of probate of the 2016 will. But, as in Fancourt, the evidence does not prove non-delivery of the originating application. On the contrary, the applicants have proved delivery by way of substituted service of the application. While the evidence proves that the respondent did not know of the application, the authorities focus on the giving of notice not on the intended recipient’s knowledge of the notice. That is explicable by reason of the practical difficulty of proof by an applicant for a grant of probate in solemn form that notice was not only given to an interested person but that the person read the notice. As observed in Fancourt,[27] the requirement for delivery rather than receipt of notice is founded on reasons of efficiency and convenience. There is an obvious risk that in some cases documents will not be received by the intended recipient. The justification for the acceptance of that risk is the obvious convenience of service by post, and the fact that in most cases the notice will reach the intended recipient.[28] A fortiori in relation to sending a document electronically.
[26] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 97.
[27] Ibid, 96.
[28] Battiste v Mulvaney [1997] SASC 6419.
It follows that the respondent was given notice. However, that leaves the question of whether the giving of notice, absent receipt of that notice personally by the respondent, afforded him the opportunity of being heard. In my view, he was given that opportunity but, even if he was not, that does not warrant an order for revocation.
At all relevant times the respondent was represented by solicitors. The solicitors were the respondent’s agent in relation to the dispute as to which of the 2016 and 2018 wills should be proved and admitted to probate. On 31 May 2022, the applicants served notice of the application for probate of the 2016 will by email on the respondent’s solicitors. Pursuant to s 13A(1)(a) of the Electronic Communications Act 2000 (SA) (ECA) the solicitors were deemed to have received the email when it became capable of being retrieved by a partner or an employee of Minter Ellison from Mr Leonardis’ office email address. I am satisfied the email to Mr Leonardis’ office email address enclosing the application for a grant of probate of the 2016 will was capable of being retrieved that same day, that is, 31 May 2022. That no one at Minter Ellison saw the email does not affect that conclusion. Section 13A of the ECA deems the email to have been received by Minter Ellison on that date. That suffices to afford the respondent the opportunity to be heard on the application even where personally he was unaware of the application.
That conclusion is not undermined by the reference in s 13A to the “addressee”. “Addressee” is defined in s 5(1) of the ECA as:
In this Act, unless the contrary intention appears –
addressee of an electronic communication means a person who is intended by the originator to receive the electronic communication, but does not include a person acting as an intermediary with respect to the electronic communication; …
First, in this context, another member of the firm of Minter Ellison would not be considered an intermediary. There is no definition of “intermediary” in the ECA. The Macquarie Dictionary defines “intermediary” to mean “an intermediate agent or agency; a go-between; acting between persons, parties, etc”. In my view, that is not an accurate description of one member of a firm of solicitors relative to another member of the same firm of solicitors. It is not correct to describe members of the same firm of solicitors as being persons acting between each other or as intermediate agents of each other. A solicitor is the agent of his or her client. The law does not impute a relationship of agency vis a vis the individual members of a firm of solicitors. Rather, the members of the firm of solicitors act as a body of legal practitioners bound by rules of professional obligations vis a vis each other which differ from the obligations they owe legal practitioners who are not members of the same firm. There is no sense in which one member of the same firm of solicitors can act as an intermediary between that solicitor and other solicitors in the same firm. The respondent retained the firm of Minter Ellison to act for him, not Mr Leonardis individually. So much is evident from the fact that Minter Ellison continued to act for the respondent after Mr Leonardis’ departure from the firm. The respondent is and was liable to the firm for the work done by any member of the firm, not just Mr Leonardis. The relevant relationship is between the respondent and the firm of Minter Ellison. It is the firm, including at the relevant time Mr Leonardis, which owes duties to the respondent in respect of his matters.[29]
[29] Lind v Legal Profession Conduct Commissioner [2022] SASC 20 [87].
Second, even if I am wrong about this, in my view, for the purposes of the definition of “addressee” in the ECA, a contrary intention appears in relation to electronic communications of this kind effecting service on a firm of solicitors as agent for the firm’s client. Electronic service on a particular member of the firm is not necessary. Just as service of hardcopy documents on the receptionist of the firm would suffice, electronic service on the firm generally or a specific member would satisfy the requirement for service under the ECA.
Moreover, by 15 July 2022 the respondent’s solicitors became aware that the application for a grant of probate in solemn form of the 2016 will had been made by the applicants. The order proving the 2016 will was not made until 22 July 2022 and the grant of probate was not made until 29 July 2022. Accordingly, there was sufficient time for the respondent’s solicitors to have appeared on either 22 or 29 July 2022 so as to enable the respondent to be heard.
But even if the respondent was not afforded the opportunity to be heard, in the circumstances of this case, the order granting probate in solemn form of the 2016 will should not be revoked.
On an application for revocation close attention needs to be given to the facts of the particular case, with proper regard to its procedural history and the due administration of justice. A grant will only be revoked where proper cause exists given the principles governing the finality of judgments which apply to all grants of probate. The exercise of the Court’s discretion in relation to revocation is governed by the purposive character of the probate jurisdiction, directed towards the due and proper administration of the particular estate and the accommodation of affected interests.[30] The Court generally reserves a right to decline to make a revocation order if not satisfied that there is utility in making the order.[31] In Neilson v The Public Trustee[32] Powell J said that the power to revoke is not exercised as a matter of course or right, rather, the question in a particular case is whether the power ought to be exercised, which is a decision in the discretion of the Court, having regard to all the circumstances of the case.[33] The application of principles governing the finality of judgments arises most obviously when an application is made for the revocation of a grant in solemn form. That is because the Court can reasonably be taken to have investigated questions about parties, evidence and the due administration of justice before making the grant.[34] That said, the principles governing the finality of judgments may operate differently in the context of probate proceedings because first, probate proceedings may involve considerations of the public interest in the due administration of a deceased’s estate and second, because a grant of probate in solemn form may bind persons not joined as parties to the application.[35]
[30] The Estate of Rogers; Rogers v Rogers [2009] WASC 358 [23]; Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [288].
[31] Willis v Earl Beauchamp (1886) 11 PD 59, 61-65; Re Goode (1890) 11 NSWR (Eq) 281, 285-288; Stanley v Stanley [2000] NSWSC 1133 [11], [33]-[34]; Richardson v Rearden [2006] NSWSC 1252 [19]-[21]; Tobin v Ezekiel (2012) 83 NSWLR 757 [5]-[9]; Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [292].
[32] (Supreme Court of New South Wales, Powell J, 8 May 1992) 14-15.
[33] Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [293].
[34] Ibid [301].
[35] Ibid [314].
In this case, while the Court made the order granting probate in solemn form of the 2016 will ex parte, it did so after investigating whether all parties with an interest in the outcome of the application for the grant had been notified. It only made the order after being satisfied that was the case. The grant was regularly made. This is an estate of fairly modest size. Considerable work has already been undertaken to obtain the grant and to hear the application for revocation. Granting the application for revocation will, almost certainly, be followed by an application to prove the 2018 will. This will have the inevitable effect of further eroding the value of the estate. For the reasons set out above, I am satisfied that the Court was correct in making the order granting probate on the basis that the respondent had been given notice of the application. In this case, the principles concerning the finality of judgments dictate the exercise of the Court’s discretion to refuse the application for revocation even if, contrary to what I have found, the respondent was not afforded a fair opportunity to be heard on the application. A grant in solemn form can be made notwithstanding the absence of any contest,[36] the critical factor being service of notice of the proceedings on all interested persons.[37] In this case that critical factor was satisfied. Refusing the application for revocation is in the best interests of the due and proper administration of the estate.
[36] Re Levy (Deceased) [1953] VLR 652.
[37] Mortimer v David; Estate of Day, Deceased [2005] NSWSC 1166 [28]; Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [296].
Conclusion

I would refuse the application for revocation of the grant in solemn form of the 2016 will. I would hear the parties as to costs.