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Re Estate Barzacca

Re Estate Barzacca

Case [2025] NSWSC 1252 27 October 2025

Standing

Discovery & Disclosure

Contested Probate

Succession Law

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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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Estate Barzacca

Details

AGLC: Re Estate Barzacca [2025] NSWSC 1252
Case: [2025] NSWSC 1252
Decision Date: 27 October 2025

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