Pitsadiotis v Nancarrow

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

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.
The respondents further contend that the capacity of the deceased to make a will and attend to his financial affairs from about 2013 onwards requires investigation. I note that the applicant has, in fact, filed an application for the issue of subpoenas to various health care providers, to obtain the deceased’s medical records. This application has not yet been dealt with.
The application that this matter proceed on pleadings
The applicant says that the respondents’ position is a speculative one and amounts to no more than vague allegations that the deceased was unable to manage his financial affairs and lacked knowledge of the value of his various assets at some time prior to his death. He says that it is clear that the respondents are unable to comply with UCR 254.5, which requires their responding affidavit to:
(a) comprise evidence admissible at the final hearing of the originating application; and
(b) set out the facts on which the respondent…relies in relation to the orders sought.[1]
[1] UCR 83.2.
The applicant’s position is that the respondents are required to demonstrate that they have a prima facie case that the deceased’s last will should not be admitted to probate, before they are entitled receive dispensation from compliance with UCR 254.5. He says that the respondents are attempting to thwart the compulsory procedure set out in the UCR (that is, the filing of the response and the responding affidavit) and to fish for evidence in order to establish a case.
The applicant says that the UCR introduced a change to the procedure for dealing with caveats in the probate jurisdiction, which imposed an obligation on the caveator to establish that they had a prima facie case to challenge the validity of a will that, on its face, appears to be valid. The Supreme Court Rules 1987 required a probate action to be commenced by summons and statement of claim. The Supreme Court (Civil) Rules 2006 allowed the plaintiff to determine whether to commence the action by way of pleadings or affidavit. The UCR are a significant departure from both the 1987 and the 2006 Rules as, for the first time, a statement of claim cannot be used to commence a probate action; the applicant must employ an originating application supported by an affidavit to commence the action. He argues that the change can only be to place a higher burden on parties to probate actions than previously existed. The applicant says that the introduction of the new procedure into the UCR should be seen as bringing the procedure in South Australia in line with that in New South Wales and Victoria, where a caveator is required to demonstrate that they have a prima facie case to challenge a will. To demonstrate the position in New South Wales, the applicant cites the case of Martin v Matthews,[2] where Hallen J said:
…the longstanding practice of the Court that, on the first return date of such a notice of motion, the caveator is expected to have available, and ready to be tendered, evidence "to show … in broad terms, that he had an interest to support the caveat and that he had a prima facie case of a ground of invalidity upon which he relied" (Nobarani v Mariconte (2018) 265 CLR 236 at [45]; [2018] HCA 36), and that in default of having such evidence available, the Court may have ordered that the caveat cease to be in force with the costs of the application being paid by the caveator (Azzopardi v Smart (1992) 27 NSWLR 232 at 238 (Powell J); D'Apice v Farrell (Supreme Court (NSW), Powell J, 15 May 1992, unrep))…[3]
[2] [2021] NSWSC 1040.
[3] Ibid, [21].
He also relies on the cases of Gardiner v Hughes[4] and Re Munro,[5] which demonstrate the position in Victoria. He says that the change to procedure set out in the UCR should be construed as effecting the same procedure as that required in New South Wales and Victoria where a caveator is required to demonstrate a prima facie case with respect to the challenge to the validity of a will.
[4] [2017] VSCA 167.
[5] [2018] VSC 747.
The applicant says that the respondents have not demonstrated that there is a prima facie case to challenge the validity of the 2018 will. The affidavit material that has been filed on their behalf has been deposed to by their solicitors, is vague and imprecise and is not admissible. As a result, the provisions of UCR 254.5 should not be dispensed with; before a decision can be made whether the matter should proceed on pleadings, the respondents must file a response and responding affidavit that complies with UCR 83.2 in order to establish that they have a prima facie case to challenge the validity of the 2018 will.
The respondents contend that the deceased did not have capacity at the time that he made the 2018 will, and further, that he did not know its contents. They say that the circumstances of the making of the will are suspicious, with regard to the value of the gifts to the applicant, a mere friend, and with regard to the fact that the applicant was also an attesting witness of the will. The suspicion is heightened by the fact that the gifts to the applicant increased substantially over a relatively short period of time, and by the fact that the deceased was of an advanced age and dependent on a carer and had suffered a stroke in 2013. Further, the deceased was dependent on the applicant for the management of his financial affairs. They say that the matter should proceed on pleadings to allow the issues in dispute to be pleaded with precision. They further say that they are not in a position to file a defence until discovery has been made of the will files held by Ms Huddleston or the firm by which she was formerly employed.
Contrary to the position of the applicant, the respondents say that the procedure set out by the UCR is not inflexible. While the UCR provides that a probate action is to be commenced by an originating application supported by an affidavit, and answered by a response and a responding affidavit, the UCR also specifically provide for the filing of pleadings in an action commenced by originating application.[6] Further, UCR 12.1(2)(a) allows the Court to dispense with compliance with a provision of the UCR or modify its application. The exercise of these powers by the Court are not limited in any way as long as the exercise is in the interests of justice.
[6] UCR 86.4(2)(a).
The respondents contend that a contentious probate action benefits from the use of pleadings, to allow the parties to articulate fully the issues in dispute. In this action, the material facts will relate to matters which occurred as far back as 2011 and which are currently not in their direct knowledge. Much of the material on which the respondents rely is in the possession of health care providers and advisers of the deceased. Pleadings will allow the questions of discovery and expert evidence to be addressed in a principled manner; they will also allow the respondents to file a cross claim against the applicant, which they are not able to do while the matter proceeds in the absence of pleadings.
The respondents say that the applicant’s submission that the procedure set out in the UCR is akin to that in New South Wales and Victoria is misconceived. The authorities relied on by the applicant relate to the statutory regime applicable in those jurisdictions and have no application in South Australia.
The respondents reject the submission that their position is speculative. They say that the facts are clear: over a four year period, the benefit to the applicant increases from $50,000 to almost $5,000,000, the applicant is involved in the will making process each time and he was acting as the deceased’s attorney for at least part of that period. Further, the decease was in his nineties, had suffered a stroke in 2013 and was dependent on carers. These facts clearly amount to suspicious circumstances which require investigation, in circumstances where the applicant is in a position to control all of the information available to the respondents. Further, the applicant has himself conceded that the medical records of the deceased are necessary to form a view on the question of the deceased’s capacity.
As the matter currently stands, the applicant controls all of the information about the deceased, his health and his will making. Whether the matter proceeds on pleadings or by way of affidavit, the respondents are not in a position to file an affidavit which contains admissible evidence, as they currently are not in a position to obtain any of that evidence; it is all in the power of the applicant.
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].
In fact, in Azzopardi v Smart,[9] Powell J was striving to explain the difference between a caveat requiring proof in solemn form and a general caveat in circumstances where the caveator wished to raise the question of invalidity of a will on the ground of lack of capacity, but lodged a caveat which only permitted him to raise the question of due execution. His statement, that a person who wishes to question the capacity of the testator must be in a position to tender evidence raising “at least a prima facie case of the ground of invalidity relied on”, must be read in this context.
[9] (1992) 27 NSWLR 232.
Powell J supported the statement set out above with reference to the case of In the will of O’Driscoll.[10] O’Driscoll, however, does not deal with the criteria for the lodging of a general caveat, or the requirements laid on a caveator when the matter first comes to court, nor is it a case dealing with the procedure to be followed when dealing with general caveats. O’Driscoll is, in fact, a decision about who should bear the costs occasioned by the lodging of a caveat which is found to be without foundation. Harvey CJ said:
A person who files a caveat before making full enquiries has to make up his mind when he is doing so that he will pay the costs of the caveat if he is not in a position to carry it further when an application is made for an order absolute. That is a position which should be clearly understood by people that they are not lightly to put on a caveat to put parties to expense and delay without very substantial grounds, and if they do so without having probed the matter fully they must be prepared to pay any costs occasioned by that caveat should they be unable to carry it on beyond the order absolute.[11]
[10] (1929) 29 SR (NSW) 559.
[11] Ibid, 561.
In Capelin, Lindsay J went on to say:
In Estate of Theresa Katalinic [2020] NSWSC 805 and in subsequent cases, including the Estate of Robyn Alice May Linworth [2021] NSWSC 334, Hallen J has recently drawn attention to the importance of framing the determination of a motion for an order that a caveat cease to be in force by reference to the text of SCR Pt 78 rule 71(4), informed by probate law and practice and case management principles, without unnecessary gloss in construction of the rule. The word “doubt”, a pivotal word, must ultimately be construed according to its ordinary meaning unqualified by words of description or limitation - although, in its application to the facts of a particular case, its exposition might be assisted by elaboration. Different judges may prefer different ways of saying much the same thing, expressed as a working assumption in application of the rule, but the rule itself is the touchstone of decision-making.
In Estate of Katalinic [2020] NSWSC 805 at [70], Hallen J held (with emphasis added) that “the appropriate test” for determining whether a caveat should cease to be in force is “whether, on the material before the Court, there is evidence that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, and there are circumstances that warrant investigation as would reasonably require the matter to proceed as a fully contested suit before the Court should consider making a grant of probate in respect of the will (a doubt as to whether the grant of probate should be made)”.
In Estate of Linworth [2021] NSWSC 334 at [53]-[57], his Honour offered, in the following terms, additional insights into the operation of SCR Pt 78 rule 71(4):
“[53] Ultimately, as the rule provides, the Court needs to be satisfied that there is “a doubt as to whether the grant of probate or administration should be made”.
[54] No attempt should be made to define, or explain, the word “doubt”. The word is self-explanatory. However, it is to be noted that there is no qualitative, or quantitative, word of limitation preceding “doubt”, setting the degree of the strength, or quality, (such as reasonable, or real, or substantive) of the “doubt”. Yet, common sense suggests that the doubt that is required should be more than fanciful, unreal, illusory, capricious, frivolous or conjectural.
[55] There is no way of measuring the doubt reached in any scientific fashion. What is simply required is a process of evaluation of all the available evidence in order to determine whether the Court is satisfied that there is a doubt as to whether a grant of probate should be made.
[56] As was written in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 by Basten JA at [47] (albeit in the context of a final hearing):
“To speak of there being a ‘doubt’ as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the Court.”
[57] The hearing of the Summons, or notice of motion, to determine the question whether the caveat should cease to be in force, generally, will not be the appropriate forum for resolving genuinely disputed factual issues. Nor does the Court determine whether the evidence, in isolation or taken together, justifies an inference of testamentary incapacity. Instead, the question is simply whether the caveator’s evidence, if true, calls for further investigation, in this case, as to the testamentary capacity of the deceased. If so, resolution of the question of a lack of testamentary capacity is one for determination at a final hearing.”
His Honour’s observations in Katalinic and Linworth were made, as appears from his judgments, with an appreciation of the necessity for the Court, in making decisions about caveats, to consult what might appear to be best adapted for the just, quick and cheap accommodation of proceedings.
To my mind, the evaluative character of the decision-making process under SCR Pt 78 rule 71(4), and a common sense assessment of “doubt”, derive, not so much from the word “doubt” alone, but from the words “doubt”, “should” and “may”, in combination, in the context of the purpose served by an exercise of probate jurisdiction - essentially, the due administration of a deceased estate without unnecessary delay. This is not, however, a substantial point of difference with the approach adopted by Hallen J.
His Honour’s observations more faithfully reflect SCR Pt 78 than does the classic statement of Powell J in Azzopardi v Smart. I prefer his reasoning to that of Powell J which, in my opinion, represents a departure from the terms of SCR Pt 78 rule 71(4), and its predecessor, an impermissible gloss on the statute.
I also endorse the following observations of Windeyer J in Weinstock v Beck; In the Estate of Weinstock [2007] NSWSC 193; (2007) 1 ASTLR 156 at [13]:
“… If the caveator adduces some evidence that may cast doubt upon the validity of the will propounded or whether it is the last will then orders will be made that the matter proceed as a contested suit on pleadings. There is no requirement on the caveator to establish a prima facie case or a serious question to be tried; what has to be established is that there is reason to allow the matter to proceed as a contested suit.”
Robb J acted upon a similar view of the law in Wilson v Wilson [2017] NSWSC 1669 at [11]. He proceeded on the basis that SCR Pt 78 rule 71(4)(b) should be applied in accordance with its terms, insofar as the issue before the Court is whether, on the evidence, there is a doubt as to whether a grant of probate should be made.
I add only that, although an order for pleadings will routinely follow a decision to dismiss a motion for an order that a caveat cease to be in force, the making of such a decision provides a convenient occasion for case management of a contested suit, and it may be advantageous for the preparation of pleadings to be deferred pending the filing by one or more of the parties to the suit of a discovery affidavit, or affidavits, of the type discussed in Re Estates Brooker-Pain and Soulos [2019] NSWSC 871, directed to disclosure of facts bearing upon real issues in dispute.[12]
[12] Supra, [61] – [69].

It must be clear, therefore, from the decision in Capelin itself, from Lindsay J’s discussion of the recent decisions of Hallen J, and from an examination of Azzopardi, that Powell J’s statement in Azzopardi does not represent the law in New South Wales but, in fact, places an “impermissible gloss” on the relevant rule. Examination of the background to Azzopardi makes this clear: the point of practice and procedure that Powell J was dealing with was not the procedure to be adopted under Pt 78 Rule 71(4)(b) of the New South Wales Supreme Court Rules 1970, but when a general caveat should be used as compared to a caveat requiring proof in solemn form. Given that it does not reflect the law in New South Wales, there is no reason why it should be inferred that it represents the law in South Australia.
The position in Victoria can be similarly disposed of. The Supreme Court (Administration and Probate) Rules 2014 (Vic) set out the procedure that must be followed when a caveat has been lodged with respect to an estate. They require the caveator to serve a statement of grounds of objection to the grant of probate. They are silent on whether those grounds must disclose a prima facie case. Nor do the authorities relied on by the applicant make such a requirement.
The first case relied on by the applicant is Gardiner v Hughes.[13] This case deals with an application for the revocation of a grant of probate, and whether an applicant to revoke a grant needed to show that they had a prima facie case in order to establish that they had standing to seek the revocation. It can be entirely distinguished as it deals with a completely different question.
[13] Supra.
The other case is Re Munro.[14] In this case, the plaintiffs sought a grant of probate. After the caveator lodged his grounds of objection and particulars, the plaintiffs issued an application seeking summary dismissal of the ground of objection and, in the alternative, strike out of each of the grounds of objection. The operative rules were those relating to summary judgment. Derham AsJ said:
When a caveator's grounds and particulars are challenged by the applicants for probate under the procedure in the CPA it is incumbent upon the caveator to support its particulars by evidence, including by reference to undisputed documents discovered or revealed by the estate of the deceased. This follows from the nature of the procedure under the CPA and the Rules made to regulate applications for summary dismissal.[15]
(footnote omitted)
[14] [2018] VSC 747.
[15] Ibid, [19].
I do not consider that this case stands for the proposition that a caveator must establish a prima facie case in their responding documents. Like Gardiner v Hughes, it deals with a very different topic.
As a result of my consideration of the authorities relied on by the applicant, I consider that the position in New South Wales and Victoria may be more nuanced than the applicant submits. Be that as it may, as I consider that the position in South Australia is very simple. It can be determined by a careful and straightforward reading of the UCR.
The position is this. An application seeking a grant of probate in solemn form must be commenced by way of originating application and supporting affidavit. Pursuant to UCR 254.5, the respondents must file a response and a responding affidavit which:
(a) comprise evidence admissible at the final hearing of the originating application; and
(b) set out the facts on which the respondent…relies in relation to the orders sought.[16]
[16] UCR 83.2.
Further, without any limitation on the time or circumstances in which this should occur, the UCR allow the respondent to apply to have the matter proceed on pleadings.[17] Whether the Court chooses to make a such an order will depend on the circumstances of the case. Whether the Court is prepared to entertain such an application before the respondents have complied with UCR 254.5 will depend on the circumstances of each individual case. Whether, and if so, when the Court will determine to dispense with compliance with UCR 254.5 will depend on the circumstances of the case. The Court is not constrained by considerations of whether the respondents have demonstrated a prima facie case, unless the specific circumstances of the case demand this. The demonstration of a prima facie case prior to seeking dispensation from compliance with UCR 254.5 is not a requirement of the UCR.
[17] UCR 86.4.
In any event, the position taken by the applicant in this matter is nonsensical. He appears to contend that, in order to be granted a dispensation from compliance with UCR 254.5, the respondents must first comply with UCR 254.5. This makes no sense at all. Of course, if an order is made that the matter is to proceed on pleadings, and ultimately, on filing their defence and cross claim the respondents are unable to demonstrate that they have a prima facie case, then they will bear the cost consequences of their forensic decisions.
Should the respondents in this matter be granted a dispensation from compliance with UCR 254.5 with an order that the matter proceed on pleadings?
I consider that the respondents in this matter are entitled to an order granting dispensation from compliance with UCR 254.5. Further, I am of the view that the matter should proceed on pleadings and that orders should be made for production of the various will files sought by the respondents.
The affidavit of the respondents’ lawyer, Mr O’Dea, sets out in detail the issues that will be in dispute, in so far as they can be ascertained in the absence of a formal statement of claim and discovery of the deceased’s medical records and will files. It is clear that one of the key assertions made by the respondents is that suspicious circumstances attend the making of the last four wills of the deceased, in that they demonstrate increasingly large gifts being made to the applicant, in circumstances where the applicant is named as the executor in each, and was an attesting witness in three of them. He held the deceased’s power of attorney and he assisted the deceased in managing his financial affairs. By his last will, the deceased gives to the applicant approximately one third of his very large estate.
There have been many cases dealing with the concept of suspicious circumstances in the making of a will. In Chant v Curcuruto,[18] Hallen J said:
When considering whether circumstances that excite suspicion exist, the Court looks at a number of factors including the circumstances surrounding the preparation of the propounded Will; whether a beneficiary was instrumental in the preparation of the propounded Will; the extent of the physical and mental impairment, if any, of the deceased; whether the Will in question constitutes a significant change from a prior Will; and whether the propounded Will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded Will is not a reason for rebutting the presumption arising from the due execution of a Will regular on its face: In re R (dec’d) [1950] 2 All ER 117 at 121.[19]
[18] [2021] NSWSC 751.
[19] Ibid, [736].
The respondents in this matter have identified circumstances which seem to fall into the various categories referred to by Hallen J. While pleadings are not currently in existence, there can be little doubt in the mind of the applicant about the types of issues which will be raised by the respondents in their pleadings. They have identified the circumstances that they consider to be suspicious and have identified appropriate authorities which have supported their contention that such circumstances justify investigation. I consider that, in these circumstances, the justice of the case and the orderly conduct of this litigation require that the matter proceed on pleadings.
I am also of the view that the making of orders for limited discovery is not premature. Given the facts currently known, there can be no doubt that the will files and the deceased’s medical records will be required. The very nature of the allegations made by the respondents means that these documents will be important, if not crucial, in determining whether a grant of probate should be issued in respect of one of the wills made by the deceased. I repeat the words of Lindsay J in Capelin:
I add only that, although an order for pleadings will routinely follow a decision to dismiss a motion for an order that a caveat cease to be in force, the making of such a decision provides a convenient occasion for case management of a contested suit, and it may be advantageous for the preparation of pleadings to be deferred pending the filing by one or more of the parties to the suit of a discovery affidavit, or affidavits, of the type discussed in Re Estates Brooker-Pain and Soulos [2019] NSWSC 871, directed to disclosure of facts bearing upon real issues in dispute.[20]
[20] [2022] NSWSC 236, [69].
I see no point in requiring the preparation of pleadings in advance of discovery as this will necessarily result in amendments and additional costs. In Re Estates Brooker-Paine and Soulos,[21] Lindsay J said:
Probate proceedings commonly require preliminary inquiries that not only involve a cost, but also require curial assistance. That assistance is commonly sought via the issue of subpoenas for the production of documents, the service of notices to produce to court, orders for the filing of affidavits on contentious issues and directions generally.[22]
[21] [2019] NSWSC 671.
[22] Ibid, [62].
He goes on to warn:
A danger of allowing proceedings to be driven by “discovery” procedures absent a closure of pleadings is that they lack direction for want of identification of real questions in dispute, and “discovery” processes can easily become captive to a perceived, open-ended necessity for further information.[23]
[23] Ibid, [131].
In the circumstances of this matter, I do not consider that it is a situation where the proceeding is being driven by discovery procedures. The respondents’ request for discovery is confined to the will files, and they have articulated clearly their reasons for requiring those documents. I note, too, that the applicant has already filed an application for the issue of subpoenas to access the deceased’s medical records. The production of the will files (and the medical records although that application has not yet been dealt with by the Court) will allow the proper articulation of the issues that have already been identified by the respondents and do not amount to an attempt by the respondents to “fish” for evidence to justify their opposition to the issue of a grant of probate.
I make the following orders:
1.   This action proceed on pleadings.
2.   Any cross claim by the respondents proceed on pleadings.
3.   The requirement under Rule 83.1 for the filing of a Response by the respondents is dispensed with.
4.   The requirement under Rule 83.2 for the filing of responding affidavit material is dispensed with.
5.   The requirement under Rule 83.3 for the fling of reply affidavits is dispensed with.
6.   The applicant obtain possession of and disclose within 28 days to the respondents for inspection and copying by the respondents:
6.1The file of DBH Commercial Lawyers in relation to the will of the deceased dated 12 December 2018;
6.2The file of DBH Commercial Lawyers in relation to the will of the deceased dated 20 September 2017;
6.3The file of Commercial and Legal (Legal Services) Pty Ltd in relation to the will of the deceased dated 18 February 2016;
6.4The file of Commercial and Legal (Legal Services) Pty Ltd in relation to the will of the deceased dated 28 May 2014; and
6.5The file of Commercial and Legal (Legal Services) Pty Ltd in relation to the will of the deceased dated 31 May 2011.
I will hear the parties further on the time within which they are to file and serve their pleadings, on the question of costs.

[2023] SASC 159

1 November 2023