Re Estate Barzacca

Case [2025] NSWSC 1252


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Re Estate Barzacca [2025] NSWSC 1252
Hearing dates: 29 August 2025
Decision date: 27 October 2025
Jurisdiction:Equity - Probate List
Before: Lindsay J
Decision:

An application (for an order that a probate caveat cease to be in force) dismissed with case management orders in aid of disclosure of wills and the circumstances in which wills were prepared and executed.

Catchwords:

SUCCESSION – Contested Probate – Practice and Procedure – Caveats – Caveat against grant – Application for order that caveat cease to be in force – Doubt as to whether grant of probate or administration should be made – Circumstances that warrant investigation before pleadings – Nature of “evidence” to be considered by Court - Case management – Orders for disclosure of information about a deceased estate, testamentary instruments and personal circumstances of a deceased person – Orders for discovery affidavits deposing to circumstances in which a will was prepared and executed – Supreme Court Rules 1970 (NSW), rule 71.4

Legislation Cited:

Australian Courts Act 1828 (Imp)

Civil Procedure Act 2005 NSW

Evidence Act 1995 NSW

Health Records and Information Privacy Act 2002 NSW

Interpretation Act 1987 NSW

Judicature Acts of 1873 and 1875 (UK)

New South Wales Act 1823 (Imp)

Statute of Frauds 1677

Succession Act 2006 NSW

Wills Act 1837

Supreme Court Rules 1970 NSW

Uniform Civil Procedure Rules 2005 NSW

Cases Cited:

Allen v M’Pherson (1847) 1 HLC 191; 9 ER 727

Azzopardi v Smart (Estate of Smart) (1992) 27 NSWLR 232

Banks v Goodfellow (1870) LR 5 QB 549

Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089

Blomley v Ryan (1956) 99 CLR 362

Boyce v Bunce [2015] NSWSC 1924

Boyce v Rossborough (1857) 6 HLC 1; 10 ER 1192

Boyd Thorn (2017) 96 NSWLR 390

Bridgewater v Leahy (1998) 194 CLR 457

Camilleri v Alexakis [2024] HCASL 274

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

Estate of Katalinic [2020] NSWSC 805

Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786

Estate of Linworth [2021] NSWSC 334

Estate Rofe [2021] NSWSC 257

Health Care Complaints Commission v Alexakis [2023] NSWCATOD 99

Health Care Complaints Commission v Alexakis (No 2) [2024] NSWCATOD 82

Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41

In the Estate of Fuld, Deceased; Hartley v Fuld (Attorney-General Intervening) [1965] P 405

Johnson v Buttress (1936) 56 CLR 113

Lewis v Lewis (2021) 105 NSWLR 487

Parfitt v Lawless (1872) LR 2 P&D 462

Quek v Beggs (1990) 5 BPR 11,761

Re Estate Capelin (Deceased) [2022] NSWSC 236; 107 NSWLR 461

Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033

Re Estate Pierobon, deceased [2014] NSWSC 387

Re Estates Brooker-Pain and Soulos [2019] NSWSC 671

Schwanke v Alexakis [2024] HCASL 246

Tobin v Ezekiel (2012) 83 NSWLR 757

Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136

Vadasz v Pioneer Concrete (SA) Pty Ltd

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Details
AGLC
Re Estate Barzacca [2025] NSWSC 1252
Case
[2025] NSWSC 1252
Decision Date

CaseChat Overview and Summary

In the case of Re Estate Barzacca, the parties involved in the dispute were the administrators of the estate of Barzacca and various potential beneficiaries who contested the grant of probate. The nature of the dispute centred around the validity of the will and the appropriateness of issuing probate. The case was heard in the Supreme Court of New South Wales. The legal issues the court was required to address included the conditions under which a caveat against the grant of probate should be sustained, and the extent of the evidence the court should consider when there is doubt as to whether a grant of probate or administration should be made.

The court examined the nature of the evidence that should be considered when the court is uncertain about whether a grant of probate should proceed. It held that the court should examine any evidence that raises a reasonable doubt about the validity of the will or the appropriateness of issuing probate. This includes circumstances that warrant further investigation before the pleadings are finalised. The court also considered the orders for disclosure of information about the deceased estate, testamentary instruments, and the personal circumstances of the deceased person, as well as orders for discovery affidavits deposing to the circumstances in which the will was prepared and executed. The court’s reasoning was guided by the relevant provisions of the Supreme Court Rules 1970 (NSW), particularly rule 71.4, which pertains to the procedure for applications regarding caveats.

The court found that the caveat should not cease to be in force and that further investigation was necessary to determine the validity of the will and the appropriateness of issuing probate. Consequently, the court issued orders for disclosure and discovery, requiring the parties to provide detailed information about the deceased estate, testamentary instruments, and personal circumstances. These orders aimed to facilitate a comprehensive review of the evidence to resolve the uncertainties surrounding the grant of probate. The final orders directed the parties to comply with the disclosure and discovery requirements, ensuring that all relevant information was made available to the court for its consideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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