Re Estate Capelin, deceased

[2022] NSWSC 236

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Re Estate Capelin, deceased [2022] NSWSC 236

Hearing dates:

14 February 2022

Decision date:

08 March 2022

Jurisdiction:

Equity

Before:

Lindsay J

Decision:

ORDERS providing for dismissal of a motion for an order that a caveat cease to be in force, and for case management of a contested probate suit

Catchwords:

SUCCESSION — Contested probate — Practice and procedure — Caveats — Caveat against grant —Notice of motion for an order that caveat cease to be in force — Whether there is a doubt as to whether the will should be admitted to probate sufficient to warrant investigation in a contested probate suit — Caveator’s case not frivolous but bona fide and reasonable

Legislation Cited:

Civil Procedure Act 2005 NSW

Evidence Act 1995 NSW

Probate Act 1890 NSW

Probate and Administration Act 1898 NSW

Succession Act 2006 NSW

Supreme Court Rules 1970 NSW

Supreme Court Act 1970 NSW

Uniform Civil Procedure Rules 2005 NSW

Cases Cited:

Azzopardi v Smart (the estate of Alice Ann Smart) (1992) 27 NSWLR 232

Bailey v Bailey (1924) 34 CLR 558

Banks v Goodfellow (1870) LR 5 QB 549

Bates v Messner and (1967) 67 SR (NSW) 187

Beatson v Perry (1906) 6 SR (NSW) 167; 23 WN (NSW) 51

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148

Dickman v Holly [2013] NSWSC 18

Estate of Robyn Alice May Linworth [2021] NSWSC 334

Estate of Theresa Katalinic [2020] NSWSC 805

Estate Rofe [2021] NSWSC 257

Gardiner v Hughes (2017) 54 VR 394

Gertsch v Roberts (1993) 35 NSWLR 631

Hall v Hall (1868) LR 1 P&D 481

Hay v Simpson (1890) 11 LR (NSW) Eq 109)

In Estate of Katalinic [2020] NSWSC 805

In Estate of Linworth [2021] NSWSC 334

In the Goods of William Loveday [1900] P 154

In the Will of Dixon (1909) 9 SR (NSW) 674; 26 WN 130

In the Will of Farrell (1891) 8 WN (NSW) 32

In the Will of Goo Tin (1910) 27 WN (NSW) 184

In the Will of O’Driscoll (1929) 29 SR (NSW) 559; 46 WN (NSW) 176

In the Will of R C Maddocks (1891) 8 WN (NSW) 32

Lewis v Lewis [2021] NSWCA 168

Mekhail v Hana [2019] NSWCA 197

Nobarani v Mariconte (2018) 265 CLR 236

Nock v Austin (1918) 25 CLR 519;

Petrovski v Nasev [2011] NSWSC 1275

Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284

Re Estates Brooker-Pain and Soulos [2019] NSWSC 871

Timbury v Coffee (1941) 66 CLR 277

Tobin v Ezekiel (2012) 83 NSWLR 757

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

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

Weinstock v Beck; In the Estate of Weinstock [2007] NSWSC 193; (2007) 1 ASTLR 156

Wilson v Wilson [2017] NSWSC 1669

Wingrove v Wingrove (1885) 11 PD 81

Winter v Crichton (1991) 23 NSWLR 116

Worth v Clasohm (1952) 86 CLR 439

Texts Cited:

Burn, The Ecclesiastical Law (London, 9th ed, 1842)

Godolphin, The Orphan’s Legacy or a Testamentary Abridgement (London, 4th ed, 1701): Part I, page 30 and Part II, pages 101 and 258

Hastings and Weir, Probate Law and Practice (Lawbook Co, Sydney, 2nd ed, 1948)

Mason and Handler, Succession Law and Practice, NSW (LexisNexis, Australia, a Loose Leaf Service)

Ritchie’s Supreme Court Procedure (NSW)

E V Williams, A Treatise on the Law of Executors and Administrators (the 2nd American ed, 1841)

Category:

Procedural rulings

Parties:

Plaintiff: Andrew Peter Capelin
Caveator: Timothy Charles Capelin

Representation:

Counsel:
Plaintiff: JEF Brown
Caveator: JE Armfield

Solicitors:
Plaintiff: Carroll & O’Dea Solicitors
Caveator: Piper Alderman

File Number(s):

2021/00208421

Judgment

INTRODUCTION

1. The plaintiff (the executor named in a deceased person’s last, putative will) applies for an order, upon an exercise of probate jurisdiction, that a “general caveat” (against a grant of probate in the estate of the deceased without prior notice to the caveator) cease to be in force.

2. The question whether such an order should be made falls to be determined by reference, particularly, to Part 78 rule 71(4) of the Supreme Court Rules 1970 NSW (“SCR”), which is in the following terms (with emphasis added):

“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:

1. that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, and

2. 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.”

3. The plaintiff concedes that the caveator has an interest sufficient to give him standing to challenge admission of the deceased’s last, putative will to probate.

4. 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.

5. 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.

6. 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.”

7. 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]. In the course of a finding that a caveator was denied procedural fairness when, at short notice, a hearing on a motion that caveats cease to be in force was conducted as a final hearing of the plaintiff’s summons for a disputed will to be admitted to probate, the High Court made the following observations:

[45]   The respondent [the plaintiff on the summons for probate] submitted that the appellant [the caveator] had known for a long time that a hearing on the caveat motion would be held and, although unbeknownst to him that caveats had lapsed, he had had months to prepare for this caveat hearing. The difficulty with this submission is that far less preparation is required for a caveat hearing than is required for the ultimate trial. If, as all the parties had assumed [until a pre-trial directions hearing], the appellant’s second caveat had not expired, then all the appellant needed to show was, in broad terms, that he had an interest to support the caveator and that he had a prima facie case on a ground of invalidity upon which he relied [Azzopardi v Smart(the estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 238]. It was reasonable for the appellant to proceed towards the caveat hearing without completing all of the preparation that would be required for trial, on an assumption of success in the caveat motion. Indeed, at the trial itself, the respondent’s submission that the caveat motion should be upheld was confined to the claim that the appellant had no interest in [a particular will] sufficient to support the caveat.”

8. It was not necessary for the High Court to give close attention to the reasoning of Powell J in Azzopardi v Smart; the meaning of the expression “prima facie case” in the context of a motion that a caveat cease to be in force; or the terms of the legislation (in particular, SCR Part 78 rule 71(4)) which currently governs the determination of such a motion. It was sufficient for the Court to refer to the caveat process “in broad terms”. Its point was that the hearing of a motion that a caveat cease to be in force imposed upon a caveator a far lighter forensic burden than would be encountered on a final hearing of an application that a will be admitted to probate.

9. The plaintiff contends that the Court is bound to make an order that the Caveator’s caveat cease to be in force and to direct that the last, putative will of the deceased be admitted to probate without further opposition on the part of the Caveator. This is based upon an assumption that the caveator is required to prove “a prima facie case”, and that it is open to him, forensically, to withhold from the Caveator information (other than evidence of the actual event of attestation) as to the circumstances in which the will was prepared and executed.

10. For his part, the Caveator contends that all that is required by SCR Pt 78 rule 71(4) to be done in order to sustain his caveat, and to allow the proceedings to continue as contentious business, is for him to demonstrate, on the evidence before the Court, “a doubt” as to whether the will propounded by the plaintiff “should” be admitted to probate without further investigation of the circumstances in which the will was prepared and executed. He contends that evidence of circumstances surrounding execution of the will, known to him and communicated to the Court, raise such a doubt, and that the refusal or failure of the plaintiff to adduce evidence about the particular circumstances in which the will was prepared reinforces the doubt.

THE NATURE OF A “PROBATE” CAVEAT

11. In the administration of probate jurisdiction a procedural device of long-standing is a “caveat” against a grant of probate or administration (or the resealing of a grant) in respect of a deceased estate. A caveat is filed by a party who requires the Court to give the caveator notice of any application for a grant and, implicitly, an opportunity to be heard before any grant is made. Rules of court governing caveat procedures have varied over time, and vary between jurisdictions, but the underlying concept of a “probate caveat” (as a warning to the Court not to make a grant without notice to an interested party) has remained constant.

12. References to the caveat procedure can be found in Godolphin, The Orphan’s Legacy or a Testamentary Abridgement (London, 4^th ed, 1701): Part I, page 30 and Part II, pages 101 and 258.

13. E V Williams’ A Treatise on the Law of Executors and Administrators (2nd American edition, 1841), in volume 1 at paragraph [396] includes the following observations (with emphasis added, omitting footnotes):

“… it is usual, where there is a question about a Will, or when the right of administration comes in dispute, to enter what is called a caveat, (which is a caution entered in the Spiritual Court to stop probates, administrations, faculties, and such like from being granted without the knowledge of the party that enters). By the canon law it is said to stand in force for three months, and is of such force and validity, that if an administration or the like, be granted pending such caveat, the same is void. But the better opinion seems to be, that it is otherwise by the common law; which will take no notice of a caveat, but considers it as a mere cautionary act done by a stranger, to prevent the Ordinary from doing any wrong: and therefore, in the common law courts, administration or probate granted contrary to a caveat entered, shall stand good.”

14. A contrast which nevertheless confirms the underlying concept, can be found in Burn’s The Ecclesiastical Law (London, 9th ed, 1842) where, on page 192 in volume 3, the following appears (with emphasis added):

“It has been said that all suits in this court [the Prerogative Court] are termed summary. An ordinary mode of commencing a suit in the Prerogative Court is, by entering in the registry what is technically termed a caveat, that is to say, a warning to the registrar that nothing be done in the goods of the deceased without notice being given to the proctor who entered such caveat; it is usually entered in a fictitious name. Strictly speaking, it is considered to remain valid for six months, but by the common usage of the Prerogative Office it is allowed to extend to a longer period; and such notice is usually given after that period has expired, if the caveat falls under observation. The effect of such a procedure is, that the proctor who applies to the court to grant probate of a will or administration of the personalty of such deceased, must worn the caveat; and then the proctor who entered the caveat must appear, set forth the interest, and declare the real name of the party in whose behalf it was entered. The suit then proceeds in the same manner as if it had originally begun.”

15. Current NSW procedures are more disciplined than Phillimore (the editor of Burn and later a judge) here suggests. Nevertheless, the underlying concept of a “probate caveat” can once again be discerned.

16. The filing of a caveat may, in practice, be the first step taken by any party in (anticipation of) probate proceedings. A caveat is not, however, a form of originating process. It is an administrative step taken in anticipation of proceedings.

17. In current day NSW, probate proceedings are generally commenced by the filing of a “summons for probate” (if a grant in common form is sought) or a statement of claim (if a grant in solemn form is sought). If a summons for probate is filed before a caveat, the plaintiff may apply to the Court, by a notice of motion, for an order that the caveat cease to be in force; if such an order is not made, the plaintiff may, in the ordinary course, be ordered to file a statement of claim. If a caveat is filed before a summons for probate, the plaintiff ordinarily files a summons for an order that the caveat cease to be in force, the disposition of which summons might take the form of an order that the plaintiff file a statement of claim. As a matter of practice, a caveat and originating process are allocated the same “case number” in the records of the Court.

18. A caveat may be filed at any time before, but not after, a grant is made. After a grant is made any challenge to the grant requires an application that it be revoked. A grant made in error, in disregard of a caveat, may, on that ground alone, be revoked

19. Under the current legislative regime operating in NSW there are three forms of caveat: (a) a “general caveat” against a grant of probate or administration or resealing of a foreign grant; (b) a caveat requiring proof of a will in solemn form; and (c) a caveat concerning an informal testamentary instrument. The approved form of caveat (Form 141) requires a caveator to choose one of the three alternative forms in addition to a statement identifying the caveator’s claimed interest in the estate the subject of the caveat.

PROCEDURAL CONTEXT

20. Kenneth Michael Capelin (“the deceased”) died on 13 July 2021, aged 77 years, leaving, so far as have been identified, three wills (respectively dated 18 December 2015, 27 March 2018 and 28 January 2020) and an estate with an estimated value of about $5.77 million

21. There is credible evidence that the deceased also made a will in or about 1993, but no such will has been located and nothing of consequence for present purposes turns upon its terms.

22. The deceased never married or had children of his own. He was predeceased by a partner of long standing (June Daisy Rowe) who died, on 20 December 2019, shortly before he made the 2020 will. He was survived by two brothers and, amongst others in his extended family, two nephews who are at issue in these proceedings. The plaintiff is a son of one brother. The Caveator is a son of the other brother. Both are solicitors.

23. By a summons for probate filed on 17 August 2021, the plaintiff (Andrew Peter Capelin), as the executor named in the will, applied to the Court for an order that the 2020 will be admitted to probate in common form. No application has been made by any party for an order that a special (interim) grant of administration be made to facilitate an orderly administration of the estate pending the making of a final grant, and no such grant has been made.

24. On 16 September 2021, the Probate Registry of the Court sent to the plaintiff a requisition drawing to attention the fact that, on that day, a caveat had been filed by Timothy Charles Capelin (“the Caveator”) pursuant to SCR Pt 78, the embodiment of the Court’s “Probate Rules”. The caveat was in the approved form of a “general caveat” (SCR Pt 78 rule 66, approved form 141) and claimed an interest in the estate of the deceased as a beneficiary under the lost 1993 will.

25. By a letter dated 20 September 2021 addressed to the plaintiff, the solicitors for the Caveator expressed concerns of their clients (the Caveator and two fellow relatives of the deceased) about the validity of the deceased’s last, putative will and requested specific information pertaining to the preparation and execution of the will, including the file of the solicitor who prepared the will; medical records relating to the deceased; and any formal capacity assessment made at or about the time the will was prepared. They also foreshadowed an intention to write to the solicitor and his associate (who attested the deceased’s execution of the will) to obtain statements from them as to the circumstances leading to the drafting and signing of the will. Their letter concluded with a statement to the effect that, upon receipt and review of the further information being sought, instructions would be taken as to whether the caveat would be maintained and the plaintiff would be required to propound the will formally.

26. By a letter dated 24 September 2021, the solicitors for the plaintiff responded, without the provision of any information, to the effect that the last, putative will was drafted by the senior of the two solicitors who attested the deceased’s execution of the document, he being an accredited specialist in Wills & Estates, and highly qualified. Pointedly, the letter concluded in the following terms:

“Caveats are not to be filed if your client [sic] does not dispute the validity of the Will. Further, caveats need to be defended by raising standing and doubts about the validity of the Will.

Do your clients dispute the validity of the Will?

Please provide by 12 pm on 27 September 2021 evidence which casts doubt about the validity of the Will failing which we will file a notice of motion to remove the caveat.

Alternatively, we invite your clients to withdraw the caveat.

We put you on notice that we will seek an order against your clients for the costs of and incidental to the notice of motion should that step prove necessary.”

27. The solicitors for the Caveator replied by a letter dated 27 September 2021, which included the following paragraphs:

“… Your letter [dated 24 September 2021] misrepresents two matters which we consider our letter [dated 20 September 2021] made abundantly clear.

Firstly, our letter dated 20 September 2021 does not state or confirm that our clients do not require the Will to be proved in solemn form. Our letter states that ‘At this juncture …’ our clients will not seek that your client [the plaintiff] prove the 2020 Will in solemn form.

Secondly, under the itemised heading, ‘Our clients’ concerns’ our letter expresses doubts they have about the validity of the Will. If it were not plain enough, we confirm that our letter is offering your client the opportunity ‘at this juncture’ to satisfy our clients’ doubts, thereby avoiding costly litigation.

Having raised numerous grounds sufficient to require the executor to make proper investigations (as is his duty) it seems your client does not wish to accept that invitation. If that is the case, your letter then misconceives what is now required of your client.

Having raised concerns about the circumstances of the Will, it is not for our clients to prove the Will by providing the evidence you demand. That remains your client’s burden whether probate is applied for in common or solemn form. That will particularly be so if your client files a Notice of Motion to remove the caveat. In any such application your client will need to depose in his affidavit as to the circumstances of the preparation and execution of the Will and the deceased’s knowledge and approval of same.

That course of action is at your client’s election. Or, your client can accept our invitation and address our queries outside of that process. However, should he choose not to do so, our correspondence and your letter of reply, should be exhibited to your client’s affidavit so the Court may inform itself of the reasonableness of his not doing so.

We again offer your client an opportunity to address our clients’ concerns.”

28. The plaintiff’s response to that offer was to file and serve the notice of motion presently before the Court. Battle lines were drawn.

29. By a notice of motion filed on 28 September 2021, the plaintiff applied to the Court (under SCR Pt 78 rule 71) for an order that the caveat cease to be in force. In formal terms, it is this notice of motion which is presently before the Court for determination.

30. After a chain of correspondence (in which the solicitors for the Caveator relied upon section 54 of the Succession Act 2006 NSW as a foundation for a claimed entitlement in the Caveator to obtain a copy of wills of the deceased), the solicitors for the plaintiff on 26 October 2021 provided to the Caveator’s solicitors a copy of each of the 2015 and 2018 wills.

31. Other correspondence, in which the Caveator sought information about the deceased’s affairs, led inconclusively back to the plaintiff’s solicitors. Battlelines were maintained.

32. Section 54 of the Succession Act 2006 is in the following terms:

Persons entitled to inspect will of deceased person

54   Persons entitled to inspect will of deceased person

(1)   In this section:

"will" includes a revoked will, a document purporting to be a will, a part of a will and a copy of a will.

(2)   A person who has possession or control of a will of a deceased person must allow any one or more of the following persons to inspect or be given copies of the will (at their own expense):

(a)   any person named or referred to in the will, whether as a beneficiary or not,

(b)   any person named or referred to in an earlier will as a beneficiary of the deceased person,

(c)   the surviving spouse, de facto partner or issue of the deceased person,

(d)   a parent or guardian of the deceased person,

(e)   any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,

(f)   any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate,

(g)   any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,

(h)   any person committed with the management of the deceased person's estate under the NSW Trustee and Guardian Act2009 immediately before the death of the deceased person,

(i)   any attorney under an enduring power of attorney made by the deceased person,

(j)   any person belonging to a class of persons prescribed by the regulations.

Note: "De facto partner" is defined in section 21C of the Interpretation Act1987.

(3)   A person who has possession or control of a will of a deceased person must produce it in a court if the court requires the person to do so.

33. On 2 February 2022, the Caveator filed a second caveat (again in the form of a general caveat) in which he claimed an interest in the estate of the deceased as a beneficiary under the 2018 will.

34. Under “the Probate Rules” (SCR Pt 78), unless the Court otherwise orders, a general caveat lapses six months after the date upon which it is filed: SCR Pt 78 rule 69. On this basis, each of the Caveator’s caveats was current at the time of the hearing of the plaintiff’s motion.

35. The Caveator no longer relies upon the first of his caveats. It can be taken to have been withdrawn: Probate and Administration Act 1898, NSW (“PAA”) section 148; SCR Pt 78 rule 70. The hearing of the plaintiff’s motion proceeded implicitly on the basis of an order that any requirement for the filing of a formal notice of withdrawal of caveat be dispensed with: Civil Procedure Act 2005 NSW (“CPA”), section 14.

36. The hearing of the motion also proceeded on the basis, agreed between the parties and accepted by the Court, that the motion is to be taken (without formal amendment) as an application for an order that the second of the Caveator’s caveats cease to be in force. The Court’s powers extend to the making of such orders as the nature of the case may require: CPA section 90; Uniform Civil Procedure Rules 2005 NSW (“UCPR”), rule 36.1

37. It is commonly accepted that a caveator bears an onus of establishing each of the elements of SCR Pt 78 rule 71(4), but why that is so, and the precise nature of any such onus, are rarely examined as stand alone issues. Most debate focuses upon the words “interest” and “a reasonable prospect of establishing such an interest” in SCR Pt 78 rule 71(4)(a) and the words “doubt” and (to a lesser extent) “should” in SCR Pt 78 rule 71(4)(b). If there is such an onus, I would characterise it as a forensic onus to persuade the Court, by reference to the criteria in subparagraphs (a) and (b), to exercise the discretion implicit in the word “may” to decline to order that a caveat cease to be in force.

38. I hesitate to characterise such an onus as “legal” or “evidentiary” because, in case management of a motion for an order that a caveat cease to be in force, or on the hearing of such a motion, a caveator may apply for an order (or the Court may on its own motion order) that documentation be produced or information be disclosed by a person involved in the preparation or execution of a will, or any person with information material to administration of the deceased’s estate. Subpoenas and other discovery procedures are routinely available, within the control of the Court, in management of a probate case: Re Estates Brooker-Pain and Soulos [2019] NSWSC 671.

39. This is consistent with pursuit of the purpose of an exercise of probate jurisdiction. Probate proceedings may from time to time appear to be adversarial (when all interested parties are before the Court), but they are essentially inquisitorial in character because of the public interest inherent in ascertaining, and giving effect to, the testamentary intentions of a deceased person, the central personality in probate proceedings.

40. The object of an exercise of probate jurisdiction is to carry out a deceased person’s duly expressed testamentary intentions, and to see that beneficiaries entitled to a deceased estate get what is due to them, without undue delay: In the Goods of William Loveday [1900] P 154 at 157; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192. Probate disputes generally require disciplined case management, a requirement of long standing reinforced by the “guiding principles” enacted as Part 6 Division 1 (sections 56-60) of the CPA. Those guiding principles, and the powers conferred on the Court by the CPA, by the UCPR and by SCR Pt 78 rule 71(6)-(9), stand against the rigid application of rules of procedure in preference to ensuring that the real issues in dispute are determined: Gardiner v Hughes (2017) 54 VR 394 at [93]-[95]. SCR Pt 78 rule 71(6) and CPA section 56(1) both direct attention to a need to consider what procedural steps may be required for a “just, quick and cheap” disposition of proceedings.

41. Probate litigation is generally characterised as “interest litigation” because, to have the standing requisite to participation in probate proceedings (or, as SCR Pt 78 rule 71(4)(a) illustrates, to sustain a caveat), a party must have an interest in the outcome of the proceedings in the sense that the party’s rights will, or might, be affected by the outcome: Nobarani v Mariconte (2018) 265 CLR 236 at [49]; Gardiner v Hughes (2017) 54 VR 394; Gertsch v Roberts (1993) 35 NSWLR 631.

42. The terms of SCR Pt 78 rule 71(4)(a) are reflective of a degree of procedural flexibility in the rule in so far as the rule refers, not simply to demonstration in the evidence of “an interest”, but also to “a reasonable prospect of establishing such an interest”. The rule speaks at the time a decision is made by the Court, but it contemplates an assessment of the future course of proceedings.

43. The plaintiff (correctly) accepts that, by virtue of his interest as a beneficiary under the 2018 will, the Caveator has an “interest” in the estate of the deceased within the meaning of SCR Pt 78 rule 71(4)(a). Accordingly, the focus for attention is on SCR Pt 78 rule 71(4)(b).

44. On the hearing of the plaintiff’s motion, the Caveator asserted that he had “a right”, to cross examine the solicitor who prepared and attested the deceased’s execution of the will, before any determination of the plaintiff’s motion. In the alternative, he contended that he should be granted leave to cross-examine the solicitor before any determination of the motion. He applied for an order (under section 36 of the Evidence Act 1995 NSW), in the nature of a subpoena to compel the solicitor to produce his file and, thereafter, to submit to cross-examination.

45. In the course of the hearing of the motion, I held that the Caveator had no “right”, at this stage of the litigation (essentially, in the nature of an interlocutory proceeding), to insist upon production of the solicitor’s file or an opportunity to cross-examine the solicitor. In the circumstances of the particular case, I declined to grant him an order in the nature of a subpoena or leave to cross-examine the solicitor. In my opinion, it was not necessary for disposition of the motion to prolong proceedings on it by an adjournment to facilitate production of the solicitor’s file and cross examination. As will emerge, a more orderly procedure is available in case management of these particular proceedings. An exercise of judgement of this type is typically required in case management of probate proceedings in a manner calculated to advance administration of an estate without being distracted by unnecessary interlocutory applications or stumbling into satellite litigation.

46. The plaintiff’s motion was heard on affidavit evidence adduced on each side of the record, without cross examination of any witness.

THE FACTUAL MATRIX

47. On the evidence presently before the Court, it appears that the earlier expressed concerns of the Caveator had a substantial foundation. At the time his last, putative will was executed, the deceased was a vulnerable man. He was elderly and physically ill with the cancers which ultimately claimed his life 18 months later. He was under palliative care, but not entirely immobile. He was profoundly depressed as a consequence of the recent, unexpected death of his long time partner, his life companion and carer. He customarily drank alcohol to excess. The solicitor who drafted the will was not the deceased’s usual solicitor. He wrote the will in his own hand and (with a fellow solicitor) attested its execution, and apparently retained it in his records, unengrossed, until the death of the deceased.

48. How he came to be retained by or on behalf of the deceased is not the subject of evidence. Why he attended the deceased at his home, rather than in his office (as might be considered normal practice) is not the subject of evidence either. What, if any, sense of urgency attended the preparation and execution of the will is unknown. Why the will was apparently retained by the solicitor, in handwritten form, without (as might ordinarily be expected to be normal practice) engrossing it in typewritten form is the subject of no evidence. Whether there were grounds for an apprehension that, if presented with a typewritten form of the will, the deceased might demonstrate a change of mind is not known.

49. The plaintiff adduced evidence in support of his motion designed to persuade the Court that the Caveator had insufficient evidence to establish a prima facie case that the last, putative will of the deceased (propounded by the plaintiff) is invalid.

50. That evidence included: (a) an affidavit by the solicitor who drafted and witnessed the deceased’s last putative will, and another affidavit by the second solicitor who witnessed the will, deposing to their attendance on the deceased at the time the will was executed; (b) medical records from the clinic of the general medical practitioner of the deceased recording, inter alia, that on a home visit to the deceased on 15 January 2020 (shortly before the date of the last, putative will) the deceased “seems quite well”; and (c) correspondence between the parties’ respective solicitors in which the Caveator’s solicitors declined to commit their client to unqualified opposition to admission of the deceased’s last, putative will without the provision of information by the plaintiff, which, on the whole, the plaintiff was reluctant to provide.

51. On the hearing of the plaintiff’s motion battlelines were ultimately drawn at a point where the plaintiff contended that the Caveator had not raised sufficient doubt about the validity of the deceased’s last, putative will to establish a prima facie case against its validity; and the Caveator contended that he had raised sufficient doubt (about due execution of the will, the deceased’s testamentary capacity and, having regard to “suspicious circumstances” surrounding the preparation and execution of the will, the deceased’s knowledge and approval of its contents) to warrant further investigation in the conduct of a contested probate suit.

THE CURRENT LEGISLATIVE SCHEME

52. The current legislative framework for caveats in NSW is found in Part 2 Division 7 (sections 144-150) of the Probate and Administration Act 1898 NSW (“PAA”) and Division 10 of SCR Pt 78 (rules 66-74).

53. Part 2 of the PAA is entitled “Probate and Administration”. Division 7 of that Part is headed “Caveats and Orders to Produce”. Sections 144-148 deal explicitly with the topic of caveats. Section 149 has been repealed. Section 150 (which overlaps with section 54 of the Succession Act 2006 NSW) empowers the Court “on the application of any person, whether any proceedings are or are not pending in the Court with respect to any probate or administration”, to make an order for production to the Court of any instrument purporting to be testamentary.

54. SCR Pt 78 is entitled “Probate and Administration”. Division 10 of that Part is entitled “Caveats”. Subdivision 1 relates to “general caveats”. Subdivision 2 relates to caveats concerning “informal wills”. Subdivision 3 relates to caveats requiring proof in solemn form. Subdivision 4 relates to caveats generally.

The Probate and Administration Act 1898 NSW

55. Division 7 of Part 2 of the PAA is in the following terms (with emphasis added):

“DIVISION 7 CAVEATS AND ORDERS TO PRODUCE

138–143 (Repealed)

144   Caveat may be lodged

(1)   Any person may lodge in the registry of the Court a caveat against any application for probate or administration, or for the sealing of any probate or letters of administration under Division 5, at any time previous to such probate or administration being granted, or to the sealing of any such probate or letters of administration.

(2)   Every such caveat shall set forth the name of the person lodging the same, and an address for service in accordance with the rules.

145   Application may proceed on notice

In every case where a caveat is lodged against an application the applicant may, subject to the giving of such notice to the caveator as the rules may require or the Court may direct, proceed, in accordance with the rules or as the Court may direct, with the application.

146   Court may order application to proceed

The Court, on the application of the caveator, may order that the application for grant or sealing, as the case may be, proceed and may give directions relating thereto.

147   (Repealed)

148   Caveats may be withdrawn

A caveat may be withdrawn at any time with the leave of the Court, subject to such order as to costs or otherwise as it may direct.

149   (Repealed)

150   Order to produce an instrument purporting to be testamentary

(1)   The Court may, on the application of any person, whether any proceedings are or are not pending in the Court with respect to any probate or administration, order any person to produce and bring into the registry any paper or writing, being or purporting to be testamentary, or otherwise material to the matter before the Court, which may be shown to be in the possession or under the control of such person.

(2)   If it is not shown that any such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that the person has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined in open Court or upon interrogatories respecting the same.

(3)   Such person shall be bound to answer such questions or interrogatories, and (if so ordered) to produce and bring in such paper or writing, and shall be subject to punishment for contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing.

(4)   (Repealed)”

The Supreme Court Rules 1970 NSW Part 78 (“the Probate Rules”)

56. Division 10 of SCR Pt 78 is in the following terms (with emphasis added):

“DIVISION 10 CAVEATS

Subdivision 1 Caveat against grant of probate or administration

66   Caveat against grant of probate or administration (cf former Part 78, rule 61)

(1)   A person who claims an interest in an estate may file a caveat in respect of any grant of probate or administration, or resealing of a foreign grant, being made in respect of the estate.

(2)   The caveat must state fully the nature of the interest claimed by the caveator and an address for service.

(3)   If the caveator is aware that any other person is making, or is intending to make, an application for the grant of probate or administration, or the resealing of a foreign grant, in respect of the same estate, the caveator must, within 7 days after filing the caveat, serve a copy of the caveat on that other person.

Subdivision 2 Caveat concerning an informal testamentary instrument

67   Caveat concerning an informal testamentary instrument (cf former Part 78, rule 62A)

(1)   A person who claims to be a person whose interests may be affected by the Court’s decision as to the deceased’s intentions in relation to an informal testamentary document may file a caveat requiring an opportunity to be heard before the Court makes such a decision.

(2)   Subrule (1) does not apply to a person who is a defendant in proceedings for the grant of probate or administration in relation to the deceased’s estate.

(3)   The caveat may be lodged—

(a)   at any time before service on that person of a copy of an application for the grant of probate or administration in relation to that estate, or

(b)   by leave of the Court, at any time before the grant of probate or administration is made.

(4)   The caveat must state fully the nature of the interest claimed by the caveator and an address for service.

(5)   If the caveator is aware that any other person is making, or is intending to make, an application for the grant of probate or administration in respect of the same estate, the caveator must, within 7 days after filing the caveat, serve a copy of the caveat on that other person.

Subdivision 3 Caveat requiring proof in solemn form

68   Caveat requiring proof in solemn form (cf former Part 78, rule 62)

(1)   A person—

(a)   who claims an interest in a deceased person’s estate as a beneficiary under a will, or

(b)   who has an interest in a deceased person’s estate and who wishes to challenge an alleged will on the ground that the will has not been duly executed,

may file a caveat requiring proof in solemn form of any such will.

(2)   The caveat must state fully the nature of the interest of the caveator and an address for service.

(3)   If the caveator is aware that any other person is making, or intending to make, an application for the grant of probate or administration, or the resealing of a foreign grant, in respect of the same estate, the caveator must, within 7 days after filing the caveat, serve a copy of the caveat on that other person.

Subdivision 4 General

69   Duration of caveat (cf former Part 78, rule 63)

(1)   A caveat under this Division takes effect when it is filed and, unless the Court otherwise orders, lapses after 6 months.

(2)   The Court may extend the duration of a caveat.

(3)   Despite subrules (1) and (2), in any proceedings on an application for the grant of probate or administration in relation to a will that comprises or includes an informal testamentary document, a caveat concerning the informal testamentary instrument lapses when the caveator becomes a party to the proceedings.

Note—

Rule 72 (2) provides that, unless the Court otherwise directs, the caveator is to be a party to the proceedings.

70   Withdrawal of caveat (cf former Part 78, rule 64)

(1)   The caveator in respect of any caveat under this Division may withdraw the caveat by filing a notice of withdrawal of caveat.

(2)   The withdrawal of the caveat takes effect when the notice is filed.

71   Order that caveat cease to be in force (cf former Part 78, rule 69)

(1)   If—

(a)   a person has applied or intends to apply for the grant of probate or administration or the resealing of a foreign grant, and

(b)   a caveat under this Division is in force in respect of any grant of probate or administration, or resealing of a foreign grant, being made in respect of the estate concerned,

the person may apply for an order that the caveat cease to be in force in relation to the application or intended application.

(2)   An application under this rule must be made—

(a)   except as provided by paragraph (b), by summons, or

(b)   if the person has commenced proceedings for the grant of probate or administration, or the resealing of a foreign grant, by notice of motion in the proceedings.

(3)   The caveator must be joined as a defendant in the proceedings on an application under this rule.

(4)   If the Court considers that the evidence 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)   that there is a doubt as to whether the grant of probate or administration should be made or whether the foreign grant should be resealed,

the Court may order that the caveat cease to be in force in respect of the application.

(5) Part 13 of the Uniform Civil Procedure Rules 2005 does not apply to the proceedings.

(6)   If it does not order that the caveat cease to be in force in respect of the application, the Court may give such directions as appear best adapted for the just, quick and cheap determination of proceedings on the application, or intended application.

(7)   Directions that the Court may give pursuant to subrule (6) include a direction to the caveator to commence proceedings.

(8)   If the Court directs the caveator to commence proceedings, it may order that if the caveator does not commence proceedings within such time as the Court fixes, the caveat is to lapse, either generally or in respect of the application or intended application.

(9)   An order under subrule (8) may be made at the time the caveator is directed to commence proceedings or at any subsequent time.

72 Certain proceedings to be commenced by statement of claim (cf former Part 78, rule 70)

(1)   If a caveat under this Division is in force in respect of a deceased person’s estate, proceedings for the grant of probate or administration, or the resealing of a foreign grant, in respect of the estate, must be commenced by statement of claim.

(2)   Unless the Court otherwise directs, the caveator is to be a party to the proceedings.

73   Service of documents on caveator

In the application of rule 10.5 of the Uniform Civil Procedure Rules 2005 to the service on a caveator of either of the following documents, namely—

(a)   an application for an order referred to in rule 71,

(b)   a statement of claim referred to in rule 72,

the caveator’s address for service is taken to be the address for service stated in the relevant caveat under rule 66, 67 or 68.

74   Assignment of case number

(1)   A case number or unique identifier is to be assigned to a caveat under this Division when it is accepted for filing.

(2)   In the case of a caveat for an estate in respect of which—

(a)   proceedings for the grant of probate or administration have been commenced, or

(b)   some other caveat has been filed under this Division, or

(c)   a notice has been filed under Division 9,

the case number or other unique identifier assigned to the caveat is to be the same as that previously assigned to the proceedings, caveat or notice.”

Summary Disposal Rules, As Such, Do Not Apply

57. In analysis of the nature and regulation of a “probate” caveat the significance of SCR Pt 78 rule 71(5) should not be overlooked. UCPR Part 13 is entitled “Summary Disposal”. Central provisions of the Part are rule 13.1 (entitled “Summary Judgment”) and rule 13.4 (entitled “Frivolous and Vexatious Proceedings”).

58. Caution needs to be observed, so as not to read too much into the proper construction of SCR Pt 78 rule 71(4) by the rule’s exclusion of the operation of UCPR Part 13. Nevertheless, SCR Pt 78 rule 71(5) speaks against any attempt to import the summary disposal provisions of UCPR Part 13 directly into SCR Pt 78 rule 71(4). The language of SCR Pt 78 rule 71(4) is to be read without reference to UCPR Part 13. The probate jurisdiction has its own, purpose driven dynamic which SCR Pt 78 rule 71 accommodates.

59. There has been an equivalent of the current SCR Pt 78 rule 71(5) in the Probate Rules (SCR Pt 78) since the SCR commenced operation in 1972.

THE “APPROVED FORM” OF A CAVEAT

60. The form of a caveat (for the purposes of SCR Pt 78 rules 66, 67 and 68), approved under CPA, is “Approved Form 141 - Caveat”. It is in the following form:

“SCR Form 141 (version 2)

SCR Part 78 rule 66, 67, 68

CAVEAT

COURT DETAILS
Division	Equity
List	Probate
Registry	Sydney
Case number
TITLE OF PROCEEDINGS
The estate of [name of deceased]
Late of:
FILING DETAILS
Filed for	[name/s] caveator
#Legal representative	[solicitor on record] [firm]
#Legal representative reference	[reference number]
Contact name and telephone	[name] [telephone]
Contact email	[email address]
CAVEAT

I require that:

#	No grant of probate or reseal be made in the estate of (name) late of (place), (occupation) who died on (date of death) without prior notice to me.
or
#	No grant be made in the estate of (name) late of (place), (occupation) who died on (date of death) unless I am given the opportunity to be heard on the question of whether a declaration as to the Court’s satisfaction under section 8 of the Succession Act 2006 (or where still relevant, section 18A of the Wills, Probate and Administration Act 1898) should be made in respect of a document made by the deceased.
or
#	Any will (or where applicable, the will dated (date) (or otherwise identify the will)) of (name) late of (place), (occupation) who died on (date of death) be proved in solemn form.
My interest is: (state caveator’s interest)
SIGNATURE
#Signature of legal representative
#Signature of or on behalf of party if not legally represented
Capacity			[eg plaintiff, solicitor on record, contact solicitor]
Date of signature
Notes
Delete whichever options are inapplicable.
This 1st paragraph is appropriate where the caveator wishes to make a general objection to grant or reseal.
The 2nd paragraph is appropriate where the only issue is whether an appropriate declaration should be made under section 8 of the Succession Act 2006 (or where still relevant, section 18A of the Wills, Probate and Administration Act 1898) (relating to testamentary documents and amendments to testamentary documents which are not executed in accordance with the formal requirements of the Act concerned).
The 3rd paragraph is appropriate where the caveator wishes to put the validity of the will beyond doubt or wishes to challenge the will on the ground it was not duly executed in accordance with the formal requirements for execution of wills. A person wishing to challenge a will by raising issues such as testamentary capacity, undue influence or fraud, should file a general caveat using paragraph 1
FURTHER DETAILS ABOUT CAVEATOR

Caveator

Name
Address [The filing party must give the party’s address.]	#[unit/level number]		#[building name]
	[street number]	[street name]		[street type]
	[suburb/city]	[state/territory]		[postcode]
	#[country (if not Australia)]
#Frequent user identifier	[include if the plaintiff is a registered frequent user]

#Contact details for caveator acting in person

Address for service [The filing party must give an address for service. This must be an address in NSW unless the exceptions listed in UCPR 4.5(3) apply. State “as above” if the filing party’s address for service is the same as the filing party’s address stated above.]	#as above #[unit/level number]		#[building name]
	[street number]	[street name]		[street type]
	[suburb/city]	[state/territory]		[postcode]
Telephone
#Fax
Email

#Legal representative for caveator

Name	[name of solicitor on record]
Practising certificate number
Firm	[name of firm]
#Contact solicitor	[include name of contact solicitor if different to solicitor on record]
Address	#[unit/level number]		#[building name]
	[street number]	[street name]		[street type]
	[suburb/city]	[state/territory]		[postcode]
DX address
Telephone
Fax
Email
Electronic service address	[#email address for electronic service eg [email protected] #Not applicable]”

RECENT CASE LAW

61. 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.

62. 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)”.

63. 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.”

64. 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.

65. 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.

66. 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.

67. 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.”

68. 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.

69. 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.

LEGISLATIVE HISTORY AND CASE LAW

70. Hallen J’s approach draws support from a study of the legislative history of SCR Pt 78 rule 71(4) and, in particular, the judgment of the Court of Appeal in In the Will of Young (1968) 70 SR (NSW) 386, together with antecedent case law.

71. The significance of the older case law is recognised in Mason and Handler, Succession Law and Practice, NSW (LexisNexis, Australia, a Loose Leaf Service) at [1681.1] where it is said that the “test” under SCR Pt 78 rule 71(4)(b) “is different in form, although probably not in substance, from that under the old procedure which required the Court to consider whether the lodging of the caveat was not bona fide but vexatious: In the Will of Dixon (1909) 9 SR (NSW) 674; 26 WN (NSW) 130a; In the Will of Young [1968] 3 NSWLR 221; (1968) 70 SR (NSW) 386; 89 (Pt 2) (NSW) 1.”

72. With that observation, I concur. The problem with the learned authors’ commentary, as with much commentary in this area of the law, is that it is accompanied by an express reference to Azzopardi v Smart for the proposition that “[the] onus of establishing the grounds for an order that a caveat cease to be in force has been described as establishing a prima facie case.”

73. The spectre of Powell J’s requirement for proof of a prima facie case has yet to be exorcised despite the clear terms of SCR Pt 78 rule 71(4) and the judgment of the Court of Appeal in In the Will of Young.

74. SCR Pt 78 rule 71(4) in its current form has been in force since 21 January 2013.

75. Between 1972 (upon commencement of the Supreme Court Act 1970 NSW and the SCR) and January 2013, its predecessor, then SCR Pt 78 rule 69(4), was in the following terms (with editorial adaptation):

“Where in respect of [a caveat] the Court considers that the evidence does not show:

(a)   that the caveator has an interest in the estate or has a reasonable prospect of establishing such an interest, and

(b)   some matter occasioning doubt as to whether the grant [precluded by the filing of a caveat] ought to be made,

the Court may order that that caveat cease to be in force in respect of the intended application [for a grant of probate or administration].”

76. The SCR in 1972 introduced criteria (refined in 2013) for the exercise of such discretion as the Court may have in deciding whether or not an application for a grant of probate or administration impeded by the lodgement of a caveat should proceed as a contested suit. Before that time legislation conferred on the Court discretionary powers unconfined by express criteria.

77. Before 1972, reaching back to the 1890s, the legislative framework for the making of decisions about the operation of a probate caveat was governed by section 147 or section 148(2) of the Wills, Probate and Administration Act 1898 NSW (as the PAA was then known), which were in the following terms (with editorial adaptation):

“147.   If, upon the day named in [an] order nisi, or upon the day to which such order has been enlarged, the caveator does not appear, such order nisi may be made absolute upon an affidavit of service, but if the caveator appear, the matter shall proceed as a contested matter, and be heard before the Probate Judge alone upon affidavit, or oral evidence, or by a jury, as the Court may direct.

148.   (1)   …

(2)   The person applying for probate or administration, or for the sealing of any probate or letters of administration, may, if he thinks fit, summon the caveator to attend before the Probate Judge to show cause why the caveat should not be removed, and such Judge may, on proof that the caveator has been summoned, make such order in the premises or otherwise as may seem fit.”

78. In In the Will of Young the Court of Appeal (constituted by Wallace P, Walsh JA and Hardie AJA) considered the operation of both section 147 and section 148(2). Wallace P and Walsh JA preferred to analyse the case before them by reference to section 147. Hardie AJA preferred analysis in terms of section 148(2). Given the absence of any criteria expressed in the two provisions governing an exercise of the Court’s discretion, there appears to have been no substantive difference in the reasoning of all three judges. All three were attracted by brief statements of principle reported in In the Will of Farrell (1891) 8 WN (NSW) 32 and in In the Will of Dixon (1909) 9 SR (NSW) 674; 26 WN 130.

78. Exercising jurisdiction under section 106 of the Probate Act 1890 NSW (which, in substance, became section 147 of the Wills Probate and Administration Act 1898), in In the Will of Farrell, Manning J is reported to have said on an application by the executor of a will to make absolute an order nisi for removal of a caveat and for a grant of probate (with editorial adaptation):

“I must have some facts on affidavit to satisfy me that there are grounds for the opposition [to a grant by the caveator]. This is a new provision expressly inserted in the Act to provide an inexpensive method of bringing such matters before the Court, that it may be seen whether the caveat has been lodged bona fide, or whether the proceeding is a mere vexatious one. The affidavits filed in the last case (In the Will of R C Maddocks (1891) 8 WN (NSW) 32) are an example of the sort of thing I should like to see in every case. This matter must stand over to allow affidavits to be filed.”

80. To understand what Manning J had in mind by reference to the affidavits filed in In the Will of R C Maddocks (also dealt with by reference to section 106 of the Probate Act 1890), the brief report of that case is here set out:

“A caveat was lodged to an application by the executrix of the will of one R C Maddocks for probate. An order nisi having been made for the grant of probate, it was now sought to make the order absolute.

Ferguson, for the executrix.

Mann, for the caveator, read an affidavit by a nephew of the deceased, which was in substance as follows:- Testator had resided with deponent for 12 years up till October last, when, in consequence of deponent giving up housekeeping testator went to live in lodgings. In consequence of his intemperate habits he was compelled to leave his first lodgings, and then became a boarder in the house of the executrix (who under the will now sought to be proved was universal legatee). At this house deponent frequently visited him and always found him in bed, under the influence of drink, and incapable of holding rational conversation, and there was always a bottle of brandy or rum on a chair by his bedside. In December last testator instructed a firm of solicitors to prepare a will leaving all his property for the benefit of the deponent’s children. The signature to the present will was wholly unlike the signature of the testator, and would not have been made by him when in possession of his mental faculties, or when having knowledge of what he was doing. There was also an affidavit by the caveator stating as the grounds of his objection to the granting of probate that the will sought to be proved was obtained, if at all, by undue influence; that his signature was not the testator’s; and that at the date of the alleged will the testator was not in a fit state to know what he was doing.

MANNING J. This is evidently not a case that I can deal with summarily on affidavit. It must proceed in the usual way by the filing of a statement of claim. The costs of this motion will be costs in the cause. That should be part of the order in cases of this kind as a matter of course.”

81. In In the Will of Dixon, Street J was dealing with a “Motion for Probate” under section 147 of the Wills, Probate and Administration Act 1898. The report of the judgment explains the context in which it was delivered:

“A caveat had been filed against the granting of probate to the executor. The executor obtained a rule nisi [under section 147] calling upon the caveator to show cause why probate should not be granted to him. An affidavit had been filed by the caveator, alleging want of testamentary capacity in the testator at the date of the will.”

Counsel for the executor is reported to have made the following submission:

“The caveator must make a prima facie case, but the affidavits submitted by him do not approach to such a case. The Court will not put the parties to the heavy expense of the suit.”

82. Street J’s judgment is reported in the following terms (with emphasis added):

“The question as to how these matters should be proceeded with was decided by Manning J in In the Will of Maddocks (8 WN 32) and in In the Will of Farrell (ibid). Section 147 of the Wills, Probate and Administration Act, 1898, provides that if a caveator appears the matter is to proceed as a contested one, either before the Probate Judge, or before the Judge and a jury on affidavit or oral evidence. The caveator in the present case appears, and therefore the matter must be proceeded with as a contested suit, unless, as Manning J pointed out, the Court is of opinion that the caveat is merely lodged vexatiously.

The Court cannot dispose of the matter summarily if the caveat is lodged bona fide, and not vexatiously, and I am not prepared to say that the caveator here has acted vexatiously in raising the question of a testamentary capacity of the testator on June 2, 1908.”

83. In In the Will of Young, the essence of the reasoning of Walsh JA appears (at 70 SR (NSW) 392) in the following terms (with editorial adaption and emphasis added):

“In the present case, for the reasons which I have stated, I think that we should decide the question before the Court by reference to the terms of section 147. The learned judge [at first instance] stated in his reasons that ‘the respondent [the caveator, at first instance] must show that there is a substantial issue to be tried’. He stated also that the evidence did not indicate that there was ‘any issue which I would be justified in having tried in a suit’. The appellants [the caveators on appeal] contend that these statements impose too high a test for determining whether the matter should proceed as a contested matter. They contend that they were entitled to have a contested suit unless it appeared that their opposition [to a grant of probate] was merely ‘vexatious’. Now it may be argued that the distinction is one of words rather than of substance. It may be suggested that, if the caveators do not produce sufficient evidence to show that there is a substantial issue to be tried, the necessary conclusion is that the opposition is vexatious. But I think that it is more than a mere matter of words. If (as the learned Judge said) it is not necessary that the caveators should show a prima facie case for the rejecting of the will, I think that they may escape a decision that their opposition is merely vexatious if they provide some material to show that their opposition is based upon doubts genuinely entertained by them as to the validity of the will (as contrasted with an opposition appearing nearly to be spiteful) and that there are circumstances which a probate court might regard as warranting some investigation. This requirement might be satisfied, although the Court was not satisfied that ultimately it would appear that the issues raised were ‘substantial’ ones.”

84. Hardie AJA (at 70 SR (NSW) 396-397) explained his reasons by reference to the judgments in Maddocks, Farrell and Dixon. He held that, in the case at hand, there was “ample material contained in the affidavit relied upon by the appellants [the caveators] to show that the appellants were genuine and bona fide in their desire and intention to contest the validity of the will, and to negative any suggestion of a vexatious or other improper use or exercise of the right of lodging a caveat, as a consequence of which the parties’ dispute as to the validity of the will should proceed as a contested suit”.

85. The Court of Appeal’s judgment is broadly consistent with the commentary on section 147 of the Wills, Probate and Administration Act 1898 NSW in the practice book of the day. Hastings and Weir, Probate Law and Practice (Lawbook Co, Sydney, 2nd ed, 1948), at page 36 contained the following observations (here reproduced without footnotes), made also in the first (1939) edition at page 297 and not altered in the 1957 supplement (prepared by D L Mahoney, later President of the Court of Appeal):

“If the caveator appear, the matter proceeds as a contested suit, unless the Court considers the lodging of the caveat to be merely vexatious.

Leave may be given to beneficiaries, who are not parties, to appear.

The caveator’s affidavit should set out facts showing some grounds of opposition, involving substantial issues, and indicating their nature, although it need not disclose his whole case, or even a prima facie case. The costs of the motion, including such affidavits, will be the costs in the estate as a matter of course.

The applicant for probate or administration, not the caveator, has to prove his title to the grant, and should begin, as if he were a plaintiff.

Doubts have been expressed as to whether an affidavit of an attesting witness, filed to support an ex parte application for probate, is admissible in support of an order absolute.”

86. The main cases relied upon in support of these observations were the same as those relied upon by the Court of Appeal, although the Court of Appeal (per Walsh JA at 70 SR (NSW) 390) can be read as having expressed doubts about the observation of Street J in In the Will of Goo Tin (1910) 27 WN (NSW) 184 (contrary to Beatson v Perry (1906) 6 SR (NSW) 167) that a caveator was not called on to make out a prima facie case. Walsh JA’s reasoning (extracted above) sidestepped that controversy by focusing attention upon “doubts genuinely entertained” as to the validity of a will, anticipating the terms of SCR Pt 78 rule 69(4) promulgated in 1972.

87. In substance, the approach of the Court of Appeal in In the Will of Young accords with that of Hallen J in Katalinic and Linworth. It does not sit comfortably with the approach of Powell J in Azzopardi v Smart.

AZZOPARDI v SMART

88. As earlier noticed, in Azzopardi v Smart (1992) 27 NSWLR 232 at 238E, Powell J wrote that:

“One is required, on the return of a summons for an order that [a general 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 [an order that the caveat cease to be in force] will be made, with costs against the caveator”.

89. Those observations set a standard which his Honour generally applied during his tenure as the Court’s Probate Judge to deal summarily with proceedings involving a caveat.

90. His Honour was regularly driven to distraction by what he perceived to be an inability on the part of the legal profession to understand the difference between “a caveat requiring proof in solemn form” and a “general caveat”. Following Walker J in Beatson v Perry (1906) 6 SR (NSW) 167; 23 WN (NSW) 51, and practice books including the second (1948) edition of Hastings and Weir, he adhered to “the practice of the court that a caveator seeking only proof in solemn form is limited to putting due execution in issue, and to cross-examining the attesting witnesses in respect of that issue.” His insistence that that practice be maintained was, it must be admitted, occasionally qualified by a preparedness to allow a fresh, general caveat to be filed in lieu of the more restrictive form of caveat. In any event he kept a tight rein on caveat proceedings.

91. His Honour’s comments about an imperative obligation on a caveator to establish “a prima facie case” was sandwiched between his observations about caveat forms and his warnings of cost consequences for a caveator who, on the return of a summons for an order that a caveat cease to be in force, failed “to tender evidence raising at least a prima facie case” of a ground of invalidity of the will under challenge. The cases on which his Honour relied (In the Will of O’Driscoll (1929) 29 SR (NSW) 559; 46 WN (NSW) 176; Beatson v Perry (1906) 6 SR (NSW) 167; 23 WN (NSW) 51; Hay v Simpson (1890) 11 LR (NSW) Eq 109) all dealt primarily with the question of costs, not directly with criteria to be applied upon an application for an order that a caveat cease to be in force.

92. His Honour did not cite the rule of court then in force (SCR Pt 78 rule 69(4)), the judgment of the Court of Appeal in In the Will of Young (1968) 70 SR (NSW) 286; the cases relied upon by the Court of Appeal in that case (In the Will of Farrell (1891) 8 WN (NSW) 32; In the Will of Dixon (1909) 9 SR (NSW) 674; 26 WN 130); or the reference in Hastings and Weir to that line of authority.

93. His Honour’s insistence that a caveator be in a position “to tender evidence raising at least a prima facie case” of a ground of invalidity of a will when called upon to do so (often without any practical means of conducting any form of investigation) developed a life of its own, not grounded in legislation or a rule of court, and not without controversy in earlier practice of the Court.

94. Despite the respect to which Powell J is undoubtedly entitled for his service as a probate judge, Azzopardi v Smart provides no firm foundation for the determination of an application governed by SCR Pt 78 rule 71(4).

THE EXPRESSION “PRIMA FACIE CASE” (IF USED) DEPENDS UPON CONTEXT

95. The expression “prima facie case” is commonly encountered in the context of a criminal prosecution. Until displaced by the criterium of “a serious question to be tried” (Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148), it was commonly used in connection with an application for an injunction in civil proceedings, and it is still sometimes used as a proxy for “a serious question to be tried”.

96. Illustrations of the variability of usage of the expression “prima facie case” can conveniently be taken from LexisNexis’ Concise Australian Legal Dictionary (LexisNexis Butterworths, Australia, 5th edition, 2015):

“Prima facie case. A serious, as opposed to a speculative, case which has a real possibility of ultimate success: Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; Shercliff v Engadine Acceptance Corp Pty Ltd [1978] 1 NSWLR 729. To obtain an interlocutory injunction, a plaintiff must establish a prima facie case and show that he or she has property or other interests which might be jeopardised if no interlocutory relief were granted: Beecham Group Limited v Bristol Laboratories Pty Ltd; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. At trial, if the plaintiff or prosecution in any proceedings has not established a prima facie case, the defendant may successfully make a no case submission. …

Prima facie evidence. In criminal proceedings, evidence that is sufficient for a defendant to be convicted of an offence (May v O’Sullivan (1955) 92 CLR 654; Zanettiv Hill (1962) 108 CLR 433) or taking the evidence of the prosecution at its highest, evidence which is capable of proving the elements of the offence beyond reasonable doubt (R v Bilick (1984) 36 SASR 321; 11 A Crim R 452; R v Briggs (1987) 24 A Crim R 98). Where the prosecution case is based on circumstantial evidence, a prima facie case is determined on the basis of such inferences as are reasonably open and as are most favourable to the prosecution: Attorney-General’s Reference (No 1 of 1983) [1983] 2 BR 410; Thorp v Abbotto (1992) 34 FCR 366; 106 ALR 239; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1. The defence is not required to present its case unless there is a prima facie case of the accused’s guilt established by the prosecution (Evgeniou v the Queen (1964) 37 ALJR 508, 510) and whether there is a prima facie case is determined without any reference to material favouring the defence (R v Haas (1986) 22 A Crim R 299) …”

97. The expression “prima facie case” is not unknown in the context of a final hearing of a contested application for probate. A classic example of that is the judgment of Isaacs J in Bailey v Bailey (1924) 34 CLR 558 at 570-572. Omitting case citations, his Honour stated the following “working propositions” for a determination of a disputed question about testamentary capacity on an application for admission of a will to probate:

1. The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.

2. This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.

3. The proponent’s duty is, in the first place, discharged by establishing a prima facie case.

4. A prima facie case is one which, having regard to the circumstances so far established by the proponent’s testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator.

5. A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requested in testaments.

6. The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances.

7. As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries; (b) the exclusion of persons naturally having a claim upon the testator; (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence, taking a substantial benefit.

8. Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof.

9. To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: There must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.

10. The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue.

11. While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.

12. Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date.”

98. In a modern procedural context, where a determination of the validity of a will falls to be made by a judge, sitting alone, without a jury, at the close of evidence adduced by all interested persons (on affidavit evidence, supplemented by cross examination), the judge is required to consider what findings of fact should be made (about whether the will was the last will of a free and capable testator, and subsidiary questions) on the whole of the evidence, drawing such inferences as may be available on the whole of the evidence. In that context, Isaac J’s “working propositions”, implicitly involving shifting burdens of proof, may not reflect the reality of a current day probate suit. That much was recognised by Leeming JA in the Mekhail v Hana [2019] NSWCA 197 at [164]-[168].

99. For present purposes, it is sufficient to note that, whether used in the context of a criminal prosecution, an application for an interlocutory injunction, the final hearing of a contested probate suit or (I suggest) any other context, the meaning of the expression “prima facie case” depends upon the particular context in which it is used and the purpose for which it is used.

100. If the expression “prima facie case” is to be used in connection with presentation of a caveator’s case in support of a caveat, it should be taken to be no more than a convenient means of referring to the criterion set forth in SCR Pt 78 rule 71(4)(b), which requires evidence that “there is a doubt as to whether the grant of probate or administration should be made”.

98. This is not a novel idea, but it can be (as in these proceedings) lost in over ready use of the expression “prima facie case”.

99. Commentary in Ritchie’s Supreme Court Procedure (NSW) on Pt 78 rule 69 (the immediate predecessor of SCR Pt 78 rule 71 as now in force) contained the following paragraph when, in July 2005, it was replaced by a new service consequent upon commencement of the CPA and the UCPR:

“[78.69.1] Some matter occasioning doubt A party who has filed a general caveat and challenges the will on grounds other than due execution, bears the onus of tendering sufficient evidence to establish doubt as to whether the grant ought to be made. It is common for this requirement to be described as imposing an obligation to establish a prima facie case of lack of testamentary capacity: Beatson v Perry (1906) 6 SR (NSW) 167; 23 WN (NSW) 51; In the Will of O’Driscoll (1929) 29 SR (NSW) 59; 47 WN (NSW) 176; Azzopardi v Smart (1992) 27 NSWLR 232. However, the rule only requires that there be ‘some matter occasioning doubt as to whether the grant ought to be made’: Spartalis v Spartalis (SC (NSW), Hodgson J, 7 April 1995, unreported).”

103. That commentary has been adapted in Ritchie’s Uniform Civil Procedure NSW, so that it now reads as follows:

“[SCR Pt 78.71.5] Caveat requires interest and doubt A party who has filed a general caveat and challenges the will on grounds other than due execution, bears the dual onus of establishing (i) that they have a reasonable prospect of establishing an interest in the estate and (ii) that there is a doubt as to whether the grant should be made. This onus requirement is commonly described as an obligation to establish a prima facie case of lack of testamentary capacity: Beatson v Perry (1906) 6 SR (NSW) 167; 23 WN (NSW) 51; In the Will of O’Driscoll (1929) 29 SR (NSW) 559; 47 WN (NSW) 167; Azzopardi v Smart (1992) 27 NSWLR 232. However SCR Pt 73 r 71(4) only requires that there be ‘a doubt as to whether the grant … should be made’; see Spartalis v Spartalis (NSWSC, Hodgson J, 7 April 1995, unreported). This has also been construed as meaning what has to be established is that there is reason to allow the matter to proceed as a contested suit: Weinstock v Beck; (2007) 1 ASTLR 156; [2007] NSWSC 193; BC 200701520 at [13] per Windeyer J. The subject to which the doubt is raised need not be the validity of the will but can extend to doubt as to whether a grant of representation in respect of an estate should be made to a particular person named as executor: Weinstock v Beck, above at [14]-[15] …”

FACTORS MATERIAL TO A DECISION UNDER SCR Pt 78 RULE 71(4)

104. SCR Pt 78 rule 71(4), and its predecessor, changed the legislative framework for the making of a decision on an application for an order that a caveat cease to be in force. This was done by the introduction of the criteria for which the sub-paragraphs of SCR Pt 78 rule 71(4) now provide.

105. A feature of those criteria, or at least that for which SCR Pt 78 rule 71(4)(b) provides, is that the Court is left with a broad discretion which (in the language of Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505) is “unconfined except in so far as the subject matter and the scope and purpose of [the governing legislation] may enable the Court to pronounce given reasons to be definitely extraneous to any objects that the legislature [or rule making authority] could have had in view”.

106. SCR Pt 78 rule 71(4)(b) offers no exposition of factors that might be taken into account by reference to it. Nor is it necessary or desirable that anything like an exhaustive list of factors be engrafted onto SCR Pt 78 rule 71(4)(b) as judicial gloss. The Court needs to retain the flexibility necessary to deal with a wide range of diverse cases.

107. Nevertheless, the following questions might aid an interrogation of the facts and circumstances of a case in the application of SCR Pt 78 rule 71(4):

1. Whether there are facts that reasonably require investigation, or documents that reasonably require inspection, before a determination can reasonably be made as to whether a propounded testamentary instrument was the last will of a free and capable testator.

2. Whether the propounded instrument appears to comply with the statutory requirements for the making of a “formal” will under the Succession Act 2006 NSW (principality, section 6) and, if not, whether there is evidence bearing upon characterisation of the instrument (under section 8 of the Act) as an “informal will”.

3. Whether there is evidence that bears upon any or all of the following questions:

1. whether, at the time the testamentary instrument was made (or at the time instructions were given for an instrument prepared by a solicitor), the testator had “testamentary capacity”: Banks v Goodfellow (1870) LR 5 QB 549 at 564-566; Bailey v Bailey (1924) 34 CLR 558; Timbury v Coffee (1941) 66 CLR 277; Worth v Clasohm (1952) 86 CLR 439; Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284.

2. whether the testamentary instrument was made with the testator’s “knowledge and approval” of its contents: Nock v Austin (1918) 25 CLR 519 at 528; Tobin v Ezekiel (2012) 83 NSWLR 757; Lewis v Lewis [2021] NSWCA 168.

3. whether the testator’s execution of the testamentary instrument was obtained by an exercise of “undue influence” on the part of an identified individual or individuals: Winter v Crichton (1991) 23 NSWLR 116; Hall v Hall (1868) LR 1 P&D 481; Wingrove v Wingrove (1885) 11 PD 81; Petrovski v Nasev [2011] NSWSC 1275 at [269]; Dickman v Holly [2013] NSWSC 18; Estate Rofe [2021] NSWSC 257.

4. whether the testator’s execution of the testamentary instrument was obtained by the “fraud” of an identified individual or individuals: Trustee for theSalvation Army (NSW) Property Trust v Becker [2007] NSWCA 136.

4. Whether (and, if so, how) evidence on those questions should be assessed, in the absence of further evidence, by reference to the probate presumptions (arising from due execution of a testamentary instrument) as discussed in Tobin v Ezekiel (2012) 83 NSWLR 757.

5. Whether, before any decision is made about how to proceed further, directions should be given for the service of notice of the proceedings on any person or for the filing and service of an affidavit disclosing the circumstances in which a testamentary instrument was prepared and executed.

6. Whether any party before the Court appears unreasonably to have withheld information reasonably available to it.

108. The Court needs to be mindful not to allow the caveat procedure to be abused by parties who seek to deploy it, not to canvass the necessity for a contested suit for a grant of probate or administration, but in an endeavour to force an opponent to show its hand before the anticipated commencement of a contested suit.

CONSIDERATION

109. In my opinion, the evidence before the Court is sufficient to show that there is a doubt as to whether the last, putative will of the deceased should be admitted to probate, a doubt sufficient to warrant an investigation in a contested probate suit. The Caveator’s case is not frivolous or lacking in bona fides. The Caveator acted reasonably in communicating his concerns to the plaintiff, and in inviting the plaintiff to dispel those concerns without a contest on the caveat, an invitation that the plaintiff (relying on Azzopardi v Smart) declined to accept.

110. The affidavits sworn by the attesting witnesses to the will, obtained and read by the plaintiff, provide no insight into the circumstances surrounding preparation of the will despite the fact that, on any view of the evidence presently available, the deceased was apparently a vulnerable man and the circumstances in which the will was prepared and executed invite explanation. The plaintiff’s affidavit evidence was not responsive to the concerns expressed by the Caveator as doubts sufficient to warrant a contested suit.

111. The clinical notes adduced in evidence by the plaintiff may, upon further inquiry, support a submission that the deceased was in control of his faculties when he executed the will. However, insofar as they speak of the deceased being “well”, they need to be read in the context of his illness and the fact that he was under a form of palliative care. They may be read as conveying the idea, simply, that he was “as well as can be for a terminally ill man”. They do not include a formal “capacity assessment” of the deceased of the type sought by the Caveator in correspondence between the solicitors. The absence of such an assessment is unexplained.

112. The plaintiff’s forensic decision to “put the Caveator to proof” of a ground of challenge to the validity of the will (to the level of a prima facie case) without providing more than formal information about the circumstances in which the will was executed lends itself to a finding that the Caveator should be allowed an opportunity to investigate the circumstances in which the will was prepared and executed in the conduct of a contested probate suit. He will do so at his own risk as to costs, without any assurance that costs will be paid out of the deceased’s estate, but he has identified grounds for the conduct of an investigation.

113. These caveat proceedings are not, as counsel for the plaintiff submits, a de facto application by the Caveator for “preliminary discovery” (akin to that for which UCPR Part 5 provides) “to obtain sufficient information to decide whether or not” to challenge the validity of the will. The evidence of the deceased’s vulnerability, and unusual circumstances surrounding preparation, execution and retention of the will in handwritten form, provide an objective foundation for a finding that further investigation of the validity of the will is warranted before a decision can reasonably be made that the will be admitted to probate.

114. The Caveator’s challenge to the due execution of the will (based upon an uninitialled amendment to the will) is not, of itself, sufficient to raise a doubt within the meaning of SCR Pt 78 rule 71(4) in light of the evidence of the solicitor who prepared and witnessed the will that the alteration was made before the will was executed. However, the vulnerability of the deceased, and the unusual circumstances surrounding the provenance of the will, are, in my opinion, sufficient to establish a doubt warranting further investigation.

115. The deceased’s testamentary capacity, and his knowledge and approval of the last, putative will, are sufficiently in play to direct that the plaintiff’s application for probate proceed by way of a statement of claim seeking a grant in solemn form.

116. The plaintiff’s refusal to respond constructively to the Caveator’s request for information; his insistence that the Caveator had first to establish a prima facie case of invalidity of the deceased’s last, putative will; and his provision of evidence that deliberately stopped short of a full explanation of the circumstances in which the will was prepared and executed, were counter-productive. By his own conduct, the plaintiff created fields of inquiry (informed by unresolved, reasonable concerns) that warrant investigation.

PROPOSED ORDERS

117. Subject to allowing the parties an opportunity to make submissions about the form of the Court’s orders, and costs, I propose to make orders to the following effect:

1. ORDER that Timothy Charles Capelin (the Caveator) be joined in these proceedings as the defendant.

2. ORDER that the defendant be granted such, if any, leave as may be necessary to withdraw the caveat filed by him on 16 September 2021.

3. ORDER that the notice of motion filed by the plaintiff on 28 September 2021 stand as an application that the caveat filed by the defendant on 2 February 2022 cease to be in force.

4. ORDER that the plaintiff’s notice of motion be dismissed.

5. ORDER that the plaintiff, no later than [a date to be specified], file and serve an affidavit, or affidavits, deposing (to the best of his knowledge, information and belief) to the circumstances in which the will of Kenneth Michael Capelin (“the deceased”) dated 28 January 2020 (“the Will”) was prepared and executed.

6. ORDER that Stephen James Lynch (the solicitor who drafted the Will and witnessed its execution), no later than [a specified date] file and serve an affidavit, or affidavits, deposing (to the best of his knowledge, information and belief) to the circumstances in which the Will was prepared and executed.

7. ORDER that Emily Claire Priestley (a second solicitor who witnessed the Will), no later than [a specified date] file and serve an affidavit, or affidavits, deposing (to the best of her knowledge, information and belief) to the circumstances in which the Will was prepared and executed.

8. ORDER that Stephen James Lynch produce to the Court, no later than [a specified date] all documents within his possession, custody or control being:

1. documents (including his file) relating to the preparation or execution of the Will; and

2. documents relating to fees charged for services provided in connection with the preparation or execution of the Will.

9. ORDER, subject to further order, that, in the absence of any objection by any person, the Registrar be authorised and directed to grant to both parties access (including photocopy access) to any documents produced to the Court in compliance with order 8.

10. RESERVE to Stephen James Lynch and Emily Claire Priestley liberty to apply for an order that orders 6, 7 and 8 of these orders be discharged or varied.

11. ORDER, subject to further order, that the plaintiff’s reasonable costs of complying with order 5 of these orders be his costs in the proceedings.

12. ORDER, subject to further order, that the reasonable costs of Stephen James Lynch of complying with orders 6 and 8 of these orders, and the reasonable costs of Emily Claire Priestley of complying with order 7 of these orders, be paid out of the estate of the deceased.

13. RESERVE to the parties, Stephen James Lynch and Emily Claire Priestley liberty to apply for an assessment of the reasonable costs of Stephen James Lynch and Emily Claire Priestley in compliance with these orders.

14. RESERVE to the parties liberty to apply for orders for the cross-examination of Stephen James Lynch and Emily Claire Priestley on any affidavits filed by them respectively pursuant to these orders.

15. ORDER that the plaintiff file and serve, no later than [a specified date], a statement of claim seeking an order that the Will be admitted to probate in solemn form.

16. ORDER that the defendant file and serve, no later than [a specified date], any defence and cross-claim he proposes to file in the proceedings.

17. ORDER that the plaintiff file and serve any reply and defence to cross claim he proposes to file in the proceedings.

18. ORDER that each party’s costs of the plaintiff’s notice of motion be his costs in the proceedings to be commenced by the filing of a statement of claim.

19. ORDER, subject to further order, that the proceedings be listed before the Succession List Judge on [a specified date] for directions.

118. I invite the parties to give consideration to whether an orderly administration of the deceased’s estate would best be served by the appointment of a special administrator pending the determination of a contested probate suit.

119. I also record my hesitancy in allowing the plaintiff’s costs of his motion to be paid out of the estate of the deceased in circumstances in which, in my opinion, he acted unreasonably in refusing to engage with reasonable inquiries made by the defendant. Subject to any submissions that might be made to the contrary, I have provisionally come to the view that the defendant’s conduct, although unreasonable, was the product of the profession’s uncritical acceptance of Azzopardi v Smart over many years.

120. SCR Pt 78 rule 71(4) should, in the future, be read and applied in accordance with its terms.

121. That does not mean that a caveator can be unmindful of the forensic onus he or she has to ensure that the Court has before it sufficient evidence to make an informed decision by reference to SCR Pt 78 rule 71(4). Nor does it mean that a caveator who acts in disregard of that onus will not be at risk of an adverse costs order. What it means is simply that, however convenient it may be to discuss the operation of the rule in other terms, the rule itself provides the criteria for a decision by the Court.

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Amendments

09 March 2022 - At [106] the word "should" has been removed so that the sentence reads "list of factors be engrafted".

At [121] the words "provides that criteria" have been replaced with the words "provides the criteria".

Decision last updated: 09 March 2022