Pitsadiotis v Nancarrow

Case [2023] SASC 159

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

PITSADIOTIS v NANCARROW & ORS

[2023] SASC 159

Decision of Judge Bochner a Master of the Supreme Court  

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE

Uniform Civil Rules 2020 (SA); Supreme Court Rules 1987; Supreme Court Civil Rules 2006 (SA); Supreme Court Rules 1970 (NSW) Pt 78 Rule 71(4); Supreme Court (Administration and Probate) Rules 2014, referred to.
Martin v Matthews [2021] NSWSC 1040; Gardiner v Hughes [2017] VSCA 167; Re Munro [2018] VSC 747; Re Estate Capelin, Deceased [2022] NSWSC 236; Azzopardi v Smart (1992) 27 NSWLR 232; In the will of O’Driscoll (1929) 29 SR (NSW) 559; Chant v Curcuruto [2021] NSWSC 751; Re Estates Brooker-Paine and Soulos [2019] NSWSC 671, considered.

PITSADIOTIS v NANCARROW & ORS
[2023] SASC 159

CIVIL

  1. On 25 November 2022, the applicant commenced this action, in which he seeks a grant of probate in solemn form of the last will of Malcolm Ewart Nancarrow deceased (“the deceased”). The applicant is named as the sole executor of the document that he says is the last will of the deceased. The respondents are the son and grandsons of the deceased and had previously lodged caveats in respect of the estate of the deceased. Pursuant to the rule 254.4 Uniform Civil Rules 2020 (“the UCR”), the applicant commenced this action by originating application supported by an affidavit. The respondents have now applied for an order that the requirement that they file a response and a responding affidavit (set out in UCR 254.5) be dispensed with and that the matter proceed on pleadings. The respondents’ application was filed two days before the first return date of the originating application and some weeks after the time limit for compliance with UCR 254.5 expired. The applicant opposes the making of the orders sought by the respondents.

    Background

  2. The deceased was a very wealthy man. Between May 2011 and December 2018, he made five wills, each purporting to revoke all previous wills made by him. When he died on 2 April 2021, his estate was worth approximately $16,000,000. He was survived by one son and two grandsons, the respondents to this action.

  3. Each of the deceased’s wills named a large number of beneficiaries, including relatives, friends and carers. Each named the applicant as his sole executor. The applicant was also one of the subscribing witnesses to all but one of the wills. Each will was drawn up by the same solicitor, Ms Huddleston. Ms Huddleston was also a subscribing witness to each will. In the first three wills, made in 2011, 2014 and 2016, the applicant is described as the deceased’s accountant. In the latter two wills, made in 2017 and 2018, he is described as the deceased’s friend.

  4. The deceased made no provision for the applicant in the 2011 will. The following four wills, however, made increasing provision for him. The benefit provided for the applicant in each will can be…

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Pitsadiotis v Nancarrow [2023] SASC 159
Case
[2023] SASC 159
Decision Date

CaseChat Overview and Summary

The matter of Pitsadiotis v Nancarrow involves a dispute over the estate of Malcolm Ewart Nancarrow, who passed away on 2 April 2021. The applicant, who is the named sole executor of the deceased’s will, has commenced an action to obtain a grant of probate in solemn form for the will. The respondents, who are the son and grandsons of the deceased, have lodged caveats against the estate and have applied for the matter to proceed on pleadings without requiring them to file a response or affidavit, as stipulated in UCR 254.5. They have also sought disclosure of the solicitor’s files relating to the wills, expressing concerns about the circumstances under which they were executed and the significant benefits provided to the applicant in the later wills.

The primary legal issue before the court was whether the respondents were required to demonstrate a prima facie case before they could seek dispensation from the procedural requirements of UCR 83.1 and 83.2. The court considered the relevant provisions of the UCR and the New South Wales Supreme Court decision in Re Estate Capelin, Deceased, which suggests that a caveator need not establish a prima facie case to seek such dispensation. The court held that there was no requirement in the UCR for a caveator to demonstrate a prima facie case before seeking dispensation, and that such dispensation could be granted without any precondition.

In reaching its decision, the court emphasised that the New South Wales Supreme Court Rules, from which the procedural rules in this matter derive, do not mandate a prima facie case for caveators in probate actions. The court noted that the requirement for a prima facie case stems from a specific provision in the New South Wales Supreme Court Rules, which is not mirrored in the UCR. Consequently, the court found that the respondents were not required to establish a prima facie case to seek dispensation from the procedural rules.

As a result of the court’s findings, the respondents' application for dispensation from filing a response and affidavit was dismissed. The matter will proceed in accordance with the usual procedural requirements outlined in the UCR.

Orders

Orders of the court

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Background

Background to the litigation

On 25 November 2022, the applicant commenced this action, in which he seeks a grant of probate in solemn form of the last will of Malcolm Ewart Nancarrow deceased (“the deceased”). The applicant is named as the sole executor of the document that he says is the last will of the deceased. The respondents are the son and grandsons of the deceased and had previously lodged caveats in respect of the estate of the deceased. Pursuant to the rule 254.4 Uniform Civil Rules 2020 (“the UCR”), the applicant commenced this action by originating application supported by an affidavit. The respondents have now applied for an order that the requirement that they file a response and a responding affidavit (set out in UCR 254.5) be dispensed with and that the matter proceed on pleadings. The respondents’ application was filed two days before the first return date of the originating application and some weeks after the time limit for compliance with UCR 254.5 expired. The applicant opposes the making of the orders sought by the respondents.Background The deceased was a very wealthy man. Between May 2011 and December 2018, he made five wills, each purporting to revoke all previous wills made by him. When he died on 2 April 2021, his estate was worth approximately $16,000,000. He was survived by one son and two grandsons, the respondents to this action. Each of the deceased’s wills named a large number of beneficiaries, including relatives, friends and carers. Each named the applicant as his sole executor. The applicant was also one of the subscribing witnesses to all but one of the wills. Each will was drawn up by the same solicitor, Ms Huddleston. Ms Huddleston was also a subscribing witness to each will. In the first three wills, made in 2011, 2014 and 2016, the applicant is described as the deceased’s accountant. In the latter two wills, made in 2017 and 2018, he is described as the deceased’s friend. The deceased made no provision for the applicant in the 2011 will. The following four wills, however, made increasing provision for him. The benefit provided for the applicant in each will can be summarised as follows:·2014 will - $50,000;·2016 will - $500,000, a half share of a term deposit (value unknown) and a motor vehicle valued in the statement of assets and liabilities at approximately $70,000;·2017 will - $550,000, shares valued in 2023 at approximately $1,722,000 and a motor vehicle worth approximately $70,000;·2018 will - $550,000, shares valued in 2023 at approximately $3,955,528 and a motor vehicle worth approximately $70,000. It can be seen that, by 2018, the applicant was to receive slightly less than one third of the deceased’s estate. I also note that, in the 2016 will, Ms Huddleston received a legacy of $50,000. The respondents, as well as applying to have the matter proceed on pleadings, have sought disclosure of Ms Huddleston’s files relating to each of the wills. They say that the circumstances in which each of the 2014, 2016, 2017 and 2018 wills was made are suspicious, given the increasingly large benefit afforded to the applicant. They say that the gifts to the applicant call into question the deceased’s knowledge and understanding of both the size and composition of his estate and the size of the gifts to the applicant in the various wills.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The respondents contend that the applicant’s position is nonsensical. His position seems to be that, in order to seek dispensation from compliance with UCR 83.1 and 83.2, the respondents must first comply with those very same rules. Not only does this make no sense, it is contrary to the UCR themselves, which specifically allow matters commenced by originating application to proceed on pleadings and which also allow the Court to dispense with compliance with a rule, without any precondition to such dispensation.Consideration In my view, this matter can be disposed of very quickly. There is nothing in the UCR which requires the respondents to demonstrate that they have a prima facie case before they seek dispensation from compliance with UCR 83.1 and 83.2. Indeed, in light of the decision of the New South Wales Supreme Court in Re Estate Capelin, Deceased,[7] it is arguable that that is not even a requirement in New South Wales, whose procedure the applicant seeks to adopt.[7] [2022] NSWSC 236. The requirement that a caveator in a probate action demonstrate a prima facie case derives from Pt 78 Rule 71(4) of the Supreme Court Rules 1970 (NSW), which provides:If the Court considers that the evidence [before the Court on the application for an order that a caveat ceases to be in force] fails to show: (a) that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, and (b) there is a doubt as to whether the grant of probate or administration should be made …the Court may order that the caveat cease to be in force in respect of the application. In Capelin, Lindsay J explained the genesis of the formulation of the words “prima facie case” in the following way:The plaintiff nevertheless contends that the caveat should cease to be in force because, he submits, the caveator has not adduced evidence sufficient to establish “a prima facie case” for opposition to admission of the will to probate. The primary authority relied upon by the plaintiff in support of this contention is the judgment of Powell J in Azzopardi v Smart(The estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 238E.The critical passage in that judgment relied upon by the plaintiff is the following (with emphasis added):“As is apparent from the second of the judgments delivered by Walker J in Beatson v Perry [(1906) SR (NSW) 167; 23 WN (NSW) 51], if one seeks to raise a ground of invalidity other than want of due execution, one is required to file, not, a caveat requiring only proof in solemn form, but, a general caveat, and, further, one is required, on the return of a summons for an order that the caveat cease to be in force, to be in a position then to tender evidence raising at least a prima facie case of the ground of invalidity relied upon, in default of which the order will be made, with costs against the caveator: see In the Will of O’Driscoll (1929) 29 SR (NSW) 559; 46 WN (NSW) 176.”That this passage has generally been taken at face value within the legal profession is perhaps best illustrated by a passing reference to it by the High Court of Australia in Nobarani v Mariconte (2018) 265 CLR 236 at 249-295 at [45].[8][8] Ibid, [4] – [7].