Re Estates Brooker-Pain and Soulos

Case •

[2019] NSWSC 671

•

28 June 2019

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Re Estates Brooker-Pain and Soulos [2019] NSWSC 671
Hearing dates: 18 March 2019
Decision date: 28 June 2019
Jurisdiction:Equity - Probate List
Before: Lindsay J
Decision:

Case Management orders proposed for control of use of subpoenas for the production of documents, and notices to produce to court, in contested probate proceedings.

Catchwords:

SUCCESSION — Wills and Probate — Consideration of principles informing practice of the Court relating to compulsory production of documents — Before pleading and service of evidence

 

CIVIL PROCEDURE — Court administration — Overriding purpose — Just, quick and cheap resolution

 

CIVIL PROCEDURE — Notices to produce — Before hearing — Probate proceedings — Practice Note SC Eq 11

  CIVIL PROCEDURE — Subpoenas — To produce documents or things — Probate proceedings — Practice Note SC Eq 11
Legislation Cited: Civil Procedure Act 2005 NSW
Evidence Act 1995
Probate and Administration Act 1898 NSW
Succession Act 2006 NSW
Cases Cited: Bailey v Bailey (1924) 34 CLR 558
Boyce v Bunce [2015]NSWSC 1924
Bridgewater v Leahy [1998] HCA 66; 194 CLR 457
Carr v Homersham (2018) 97 NSWLR 328
Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN 215
Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Estate Moran; Teasel v Hooke [2014] NSWSC 1839
Estate of Hodges, dec’d; Shorter v Hodges (1988) 14 NSWLR 698
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of Fuld, deceased; Hartley v Fuld (Attorney General intervening) [1965] P405
In the Goods of William Loveday [1900] P 154
Osborne v Smith (1960) 105 CLR 153
Photios v Photios [2019] NSWCA 158
Re Estate Grundy (No. 2) [2018] NSWSC 1495
Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107
Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033
Re Estate Pierobon, deceased [2014] NSWSC 387
Tobin v Ezekiel (2012) 83 NSWLR 757
Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; (2007) 14 BPR [98369]
Waind v Hill & National Employers Mutual Association Ltd [1978] 1 NSWLR 372
Zorbas v Sidiropoulous (No. 2) [2009] NSWCA 197
Texts Cited: GC Lindsay, The Handbook (Law Book Co., 2005)
Category:Procedural and other rulings
Parties:

Re Estate of Brooker-Pain
Plaintiff: Lorraine Kershaw
Defendant: Janet Bennett

  Re Estate of Soulos
First Plaintiff: Con Kristallis
Second Plaintiff: Trevor Ian Cork
Third Plaintiff: Nicholas Andrew Soulos
Defendant: James Soulos
Representation:

Re Estate of Brooker-Pain
Counsel:
Plaintiff: RD Wilson SC
Defendant: H Pintos-Lopez

 

Solicitors:
Plaintiff: L Rundle & Co.
Defendant: Clarke Kann

 

Re Estate of Soulos
Counsel:
Plaintiffs: MK Meek SC and NCT Bilinsky
Defendant: L Ellison SC

  Solicitors:
Plaintiffs: McPhee Kelshaw Solicitors
Defendant: Carroll & O’Dea Lawyers
File Number(s): Re Estate of Brooker-Pain: 2018/00310910, Re Estate of Soulos: 2018/00050908

Judgment

INTRODUCTION

The Nature of these Proceedings

  1. Before the Court are two separate sets of proceedings which invoke the probate jurisdiction of the Court and which, in common, invite consideration of principles informing practice of the Court (in the conduct of the Probate List in the Equity Division) relating to the issue of “subpoenas for production” of documents, and the service of “notices to produce to court”, at an interlocutory stage of the proceedings well in advance of appointment of a date for final hearing.

  2. In neither case is there need of an order, a subpoena for production or a notice to produce directed towards the production of a will or other testamentary instrument. In each case, the parties have identified the deceased’s last will and earlier wills which may be in competition with it for admission to probate.

  3. Nevertheless, a review of the law and practice relating to the use of procedures for the compulsory production of documents in aid of probate proceedings (in particular, an application for admission of a will to probate or a comparable procedure) requires consideration of the means by which a person who is, or may be, interested in a deceased estate can investigate the existence of a will and the circumstances of its preparation and execution.

  4. What both cases before the Court highlight is the central importance of

  1. a consensus about the real issues in dispute in probate proceedings;

  2. identification of a proper forensic purpose in seeking the production of documents;

  3. avoidance of oppression in deployment of procedures for the compulsory production of documents;

  4. recognition that engagement of the Court’s procedures for the compulsory production of documents must be governed by considerations of reasonableness, in the application of case management principles, in the particular case; and

  5. an understanding that, in management of a probate case, the Court may adapt its procedures to facilitate the determination of real issues in dispute by, for example:

  1. permitting documents to be brought within the control of the Court at an early stage of proceedings, if need be deferring any inspection of them until parties have identified a reasonable foundation for access at the particular time; or

  2. directing that a solicitor or other person who prepared, or arranged for execution of, a will explain the circumstances in which the will was prepared or executed.

  1. Disputation about the availability or scope of procedures for compulsory production of documents in probate proceedings is often a function of a lack of clarity about the issues to be determined in the principal proceedings. If there is a consensus about the real issues in dispute, the categories of documents required to be produced to the Court, in aid of a just determination of the proceedings, becomes substantially less contentious.

  2. For this reason, it is important to appreciate:

  1. the customary nature of pleadings on an application for a testamentary instrument to be admitted to probate. (Standard form probate pleadings are reminiscent of old style common law “issue pleadings” rather than “fact pleadings” traditionally characteristic of equity proceedings);

  2. the standard grounds for challenging the validity of a will (no due execution, testamentary incapacity, absence of knowledge and approval, fraud, and coercion characterised as undue influence in probate practice); and

  3. principles governing onus of proof, and presumptions, in probate proceedings.

  1. If and when the parameters of a case are set, questions about the availability of procedures for the compulsory disclosure of documents (or other forms of “discovery”, such as interrogatories) and the scope of “orders” for the production of documents (whatever may be the form of such orders) are governed by considerations of what is reasonably required for a just determination of the principal proceedings.

  2. An allowance can be made for a need to conduct an investigation into whether a testamentary instrument is, or is not, the last will of a free and capable testator; but that too is governed by considerations of reasonableness: (a) in identification of a case for inquiry, including identification of a legitimate forensic purpose in pursuit of an investigation; and (b) in avoidance of oppression.

  3. The merits of each case must ultimately be considered on the facts of the particular case, in the context of case management principles, having regard to the purpose for which probate jurisdiction exists.

  4. A reference to “case management principles” is a reference to the “Guiding Principles” set out in Division 1 (sections 56-60) of Part 6 of the Civil Procedure Act 2005 NSW (“CPA”). The Court’s “overriding purpose” is to facilitate the just, quick and cheap resolution of real questions in dispute: CPA section 56. Proceedings are to be managed having regard to objects which include the just determination of the proceedings, the efficient disposal of the business of the Court in a timely and cost-effective manner: CPA section 57. The Court must act in accordance with “the dictates of justice”, elaborated by reference, inter alia, to the degree of difficulty or complexity to which the issues in the proceedings give rise and the degree of injustice that would be suffered by the respective parties to proceedings as a consequence of any order or direction made by the Court: CPA section 58. Delay is to be minimised: CPA section 59. Costs should be kept proportionate to the importance and complexity of the subject matter in dispute: CPA section 60.

  5. The task of the Court is to carry out a deceased person’s duly expressed testamentary intentions, and to see that beneficiaries get what is due to them: In the Goods of William Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192.

An Application for Disclosure

  1. The first set of proceedings (numbered 2018/00310910) relates to the estate of Agnes Kelly Brooker-Pain who died on 26 September 2018 aged 98 years, leaving an estate with an estimated value of approximately $1.5 million and a last will dated 12 April 2014, probate of which is sought by the plaintiff.

  2. The defendant having filed a caveat, the plaintiff filed a statement of claim (seeking a grant of probate of the will dated 12 April 2014 in solemn form) naming the defendant as her contradictor.

  3. No defence or cross-claim has yet been filed.

  4. The deceased is believed to have executed the following testamentary instruments, here identified in chronological order: a will dated 22 May 1978; a will dated 9 February 2009; a will dated 20 October 2009; a letter (said to be an informal will) dated 22 October 2009; a codicil dated 13 July 2012; and the contested will dated 12 April 2014.

  5. The plaintiff is a granddaughter of the deceased and a beneficiary under the contested will, and earlier wills of the deceased. The defendant is a daughter of the deceased who, although a beneficiary under earlier wills, was excluded from the contested will.

  6. By a notice of motion filed on 9 January 2019, the defendant applies to the Court for: (a) leave to issue subpoenas for production directed to specified hospitals and health care professionals relating to medical treatment of the deceased; and (b) an order, under CPA section 68, for the production of documents by the solicitors for the plaintiff (formerly solicitors for the deceased) relating to the preparation and execution of the contested will.

  7. She also applies, orally, for an order, pursuant to CPA section 61, that the plaintiff provide to the defendant, within a specified time, the names of doctors or medical professionals who treated the deceased (other than those identified by the defendant as known to her) in the period 2011-2018.

  8. CPA sections 61 and 68 are in the following terms:

“61 Directions as to practice and procedure generally

(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

(2) In particular, the court may, by order, do any one or more of the following:

(a) it may direct any party to proceedings to take specified steps in relation to the proceedings,

(b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,

(c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate.

(3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following:

(a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim,

(b) it may strike out or limit any claim made by a plaintiff,

(c) it may strike out any defence filed by a defendant, and give judgment accordingly,

(d) it may strike out or amend any document filed by the party, either in whole or in part,

(e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce,

(f) it may direct the party to pay the whole or part of the costs of another party,

(g) it may make such other order or give such other direction as it considers appropriate.

(4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court.

…

68 Attendance at court and production of documents and things to court

Subject to rules of court, the court may, by subpoena or otherwise, order any person to do either or both of the following:

(a) to attend court to be examined as a witness,

(b) to produce any document or thing to the court.”

  1. The defendant suspects that the deceased lacked testamentary capacity at the time she executed the contested (2014) will, and that she may have executed it under undue influence.

An Application to Set Aside Subpoenas and Notices to Produce

  1. The second set of proceedings (numbered 2018/00050908) relates to the estate of Rene Soulos who died on 27 January 2018 aged 98 years, leaving an estate with an estimated value of approximately $35 million and a last will dated 13 March 2017, probate of which is sought by the plaintiffs.

  2. The defendant having filed a caveat, the plaintiffs at my invitation filed a statement of claim (seeking a grant of probate of the will dated 13 March 2017 in solemn form) naming the defendant as their contradictor.

  3. The deceased was survived by four children. The plaintiffs are, respectively, her accountant, her solicitor, and one of her sons. The defendant is also a son.

  4. The defendant has filed a defence challenging the validity of the will dated 13 March 2017 on the grounds that the deceased lacked testamentary capacity and that she signed the will without knowledge and approval of its contents.

  5. He has also filed a cross claim in which he makes alternative claims for relief; namely: (a) a grant of letters of administration of the estate of the deceased upon the basis that she died intestate; (b) alternatively, orders for admission to probate of a will of the deceased dated 5 November 2015; and (c) if the deceased is not found to have died intestate, orders for family provision relief out of the estate of the deceased under Chapter 3 of the Succession Act 2006 NSW.

  6. The deceased is believed to have executed 16 wills respectively dated (in chronological order) 17 January 1995, 22 January 2003, 3 February 2003, 4 June 2008, 11 June 2010, 12 May 2011, 18 May 2011, 13 December 2012, 22 March 2013, 26 March 2013, 30 January 2015, 11 March 2015, 20 October 2015, 5 November 2015, 8 February 2017 and 13 March 2017. I have not located the will dated 20 October 2015.

  7. In his cross claim, the defendant alleges that, between 17 January 1995 and 13 March 2017 or thereabouts, the deceased purported to make these 16 wills, each of which is alleged to have been made without her knowledge and approval. This allegation grounds the defendant’s claim that the deceased died intestate. His alternative claim (for the will dated 5 November 2015 to be admitted to probate) is based upon a contention (additional to his allegation of a want of knowledge and approval) that, when she executed two later wills (respectively dated 8 February 2017 and 13 March 2017) the deceased lacked testamentary capacity.

  8. By a notice of motion filed on 14 November 2018, the plaintiffs seek to set aside: (a) three notices to produce to court dated 29 October 2018, one addressed to each plaintiff; (b) a subpoena addressed to Concord Repatriation General Hospital, filed 1 November 2018; and (c) a subpoena addressed to the plaintiffs’ solicitors, filed on 5 November 2018.

  9. Each of these documents seeks the production of documents for the period between 7 December 2003 and 27 January 2004. The subpoena addressed to Concord Hospital seeks medical records relating to the deceased. The subpoena addressed to the solicitors seeks production of their file, or files, relating to the preparation and execution of wills of the deceased. The notices to produce are expressed in terms similar to the subpoena addressed to the solicitors.

  10. The plaintiffs contend that, in their scope, these demands for compulsory disclosure of documents are unduly wide and oppressive, and not directed to questions genuinely in dispute in the proceedings.

  11. Although the plaintiffs’ notice of motion seeks an order that the subpoena addressed to Concord Hospital be set aside, the Hospital produced documents to the Court in answer to the subpoena on 13 November 2018, prior to the hearing of the motion. In that light, the motion is, in effect, an application for refusal, or limitation, of the defendant’s access to the Hospital records.

  12. No documents have been produced to the Court in answer to the other process sought to be set aside.

PROCEDURAL FRAMEWORK

  1. In concept, proceedings on an application for a grant of probate or administration may involve invocation of procedures commonly used in ordinary civil proceedings for the “disclosure“ of documents material to the application – procedures such as “discovery of documents” (Uniform Civil Procedure Rules 2005 NSW Part 21); administration of interrogatories (UCPR Part 22); subpoenas for production (UCPR Part 33); notices to produce (UCPR Parts 21 and 34); and orders for the production of documents (CPA section 68, if not also CPA section 61). Whether “preliminary discovery” procedures (governed by UCPR Part 5) are available is a moot point. They are not commonly referred to in the context of probate proceedings.

  2. In practice, the procedures most commonly deployed are subpoenas for production; notices to produce to court; and applications for a direction that affidavits be filed and served on particular issues, such as the circumstances in which a will was prepared or executed. Each of these procedures is amenable to case management principles.

  3. In former times, the Court was more vigilant than it now is about the deployment of subpoenas for the production of documents at a time when no trial, hearing or application is pending. In Botany Bay Instrumentation & ControlPty Ltd v Stewart [1984] 3 NSWLR 98, Powell J held that where a party (at a time when no trial, hearing or application was pending) caused subpoenas to be addressed to strangers to litigation calling upon them to produce documents as a means of obtaining further and better discovery, the Court could set aside the subpoenas as an abuse of the processes of the court.

  4. The strictness of that approach was displaced no later than enactment of the Civil Procedure Act and the Uniform Civil Procedure Rules in 2005: JP Hamilton, “Nuts and Bolts for Judicial Officers” in Lindsay (ed), The Handbook (Law Book Co., 2005) at [9.2200]; Azzi v Volvo [2006] NSWSC 283 at [10]. This is consistent with the development of case management theory which informs practice governed by the CPA and the UCPR. Questions about “discovery” are now more routinely dealt with at directions hearings than they were in an era in which “trial preparation“ was generally undertaken with less direct supervision by the Court than is now common.

  5. General discovery (based upon an order for discovery or service of a notice for discovery after the close of pleadings) was “abolished” at about the same time as parties were allowed greater latitude in the service of subpoenas for production and notices to produce. Subpoena and discovery processes are generally now directed to production of identified classes of documents rather than all documents “relevant” to issues defined by pleadings: Azzi v Volvo [2006] NSWSC 283 at [10]-[11]; Cf, K. F. O’Leary and A. E. Hogan, Principles of Practice ad Procedure (Butterworths, Sydney, 1st ed, 1976), Chapter 20 and Chapter 23 section 3. One consequence of this is that particular vigilance may be required in prevention of abuses of process attending indiscriminant deployment of subpoenas and notices to produce.

  1. Under current rules of court, a subpoena for production (UCPR Part 33) and a notice to produce to court (UCPR, Part 34) have substantially the same effect, material differences being that:

  1. a subpoena is issued by the Court, on the application of a party, and can be directed to any person, whether a party to the proceedings or not.

  2. a notice to produce to court is not issued by the Court, but simply served by a party, and can be directed only to a party.

  1. By definition, a subpoena to produce is an order in writing requiring the addressee to produce a document or thing to the Court: UCPR rule 33.1. Subject to formalities as to service having been complied with, an addressee must comply with the subpoena by production to the Court of a document or thing specified in the subpoena: UCPR rule 33.6. A failure to comply with a subpoena without lawful excuse is a contempt of court: UCPR rule 33.12.

  2. A party served with a notice to produce to court, requiring a document or thing to be produced to the Court, must comply with the notice without the need for any subpoena for production: UCPR rules 34.1-34.2. At common law, there was no obligation on a person on whom a notice to produce had been served to produce any document, the consequence of non-production being that otherwise inadmissible secondary evidence of the document could be adduced by the party serving the notice: H. H. Glass (ed), Seminars on Evidence (Law Book Co, Sydney, 1970), Chapter 1 (by A.R. Moffitt). The element of compulsion was introduced by the Supreme Court Rules 1970 NSW, Part 36 rule 16, the template for UCPR rules 34.1 – 34.2: Hogan and O’Leary, op. cit., paragraph [23.302].

  3. A subpoena to produce and a notice to produce to court may specify one or more identified documents for production to the Court. Customarily, however, they specify classes of documents (described generically) for production.

PRACTICE NOTE NO. SC EQ 11

  1. In March 2012, in exercise of a power for which CPA section 15 provides, the Chief Justice issued a practice note in the following terms (with emphasis added).

“PRACTICE NOTE SC Eq 11

Disclosure in the Equity Division

Commencement

1.   This Practice Note was issued on 22 March 2012 and commences on 26 March 2012.

Application

2.   This Practice Note applies to all new and existing proceedings in the Equity Division, except in the Commercial Arbitration List.

Purpose

3.   This Practice Note is for the guidance of practitioners in preparing cases for hearing in the Equity Division with the aim of achieving the just, quick and cheap resolution of the real issues in dispute in the proceedings.

Disclosure

4.   The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure.

5.   There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings.

6.   Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out;

the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings;

the classes of documents in respect of which disclosure is sought; and

the likely cost of such disclosure.

Costs

7.   The Court may impose a limit on the amount of recoverable costs in respect of disclosure.”

  1. Practice Note SC Eq 11 was issued as the Court’s response to widespread concern that procedures for “the discovery of documents“ (generically, “disclosure of documents“) were being abused to the point of impeding the orderly conduct of proceedings, and imposing on opposing parties prohibitive costs and an unacceptable risk of onerous costs orders: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393 at [64]-[66]; Leighton International v Hodges [2012] NSWSC 458 at [4]-[7]. In essence, as an aid to a focus of attention on the real issues in dispute the Practice Note requires parties, in the ordinary course, to put their best case forward in the service of evidence (implicitly, after the close of pleadings, if any) before expectation of any form of order for “disclosure” of documents.

  2. Probate law and practice does not fit neatly into the conceptual framework of Practice Note SC Eq 11. That is because:

  1. the effective conduct of probate proceedings may require that, at an early stage of the proceedings, all interested parties be assisted by: (i) steps taken to bring within the control of the Court all known testamentary instruments of the deceased, the file of a solicitor who drafted one or more of those instruments, and medical or other records bearing upon the deceased’s testamentary capacity; and (ii) a direction that a person (usually, but not necessarily, a solicitor) who prepared a will, or supervised its execution, explain the circumstances surrounding preparation and execution of the will;

  2. the assistance of the Court might be required to locate, and cause to be brought into court, the deceased’s testamentary instrument(s); and

  3. although the concept of “exceptional circumstances” for which paragraph 4 of the Practice Note provides focusses attention on a “necessity” for disclosure, by reference to the real issues in dispute, in the particular case (Leighton International v Hodges [2012] NSWSC 458 at [10] and [18]-[20]; Danihel v Manning [2012] NSWSC 556 at [16]), such a “necessity” will often be more readily found in probate proceedings than in other types of proceedings because of the nature of the probate jurisdiction in administration of the affairs of the dead.

  1. Nevertheless, the Practice Note applies, in terms, to the conduct of the Probate List in the Court’s Equity Division.

  2. It does not, in terms, apply to the deployment of subpoenas for the production of documents or notices to produce to court, but similar considerations may inform decision-making about the deployment of subpoenas and notices to produce: Re Mempoll Pty Ltd [2012] NSWSC 1057 at [12]; Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [55].

  3. Its field of operation is the provision of “guidance” against a premature, or unnecessary, resort to procedures for “disclosure of documents”. It requires a party who seeks a “disclosure order” to make disclosures about his, her or its own case, either by service of evidence in the principal proceedings or evidence justifying the application for a disclosure order.

  4. In proceedings in the Probate List, on an application for leave to issue subpoenas for production of documents or to serve notices to produce to court (or, perhaps more often, on an application to set aside a subpoena or notice to produce given that dates for the return of subpoenas and notices to produce may be given administratively by the Court’s Registry without full inquiry about case management considerations), the topics canvassed by the Court may include those identified in paragraphs 4-6 (inclusive) of the Practice Note:

  1. What are the real issues in dispute in the principal proceedings?

  2. What, if any, exceptional circumstances necessitate use of the subpoena process before the parties have served their pleadings or evidence?

  3. Why is engagement of the subpoena process at that particular time necessary for the resolution of real issues in dispute?

  4. Why are particular subpoenas and notices to produce necessary for the resolution of real issues in dispute?

  5. What, if any, classes of documents are necessary for the resolution of real issues in dispute?

  1. Parties to a dispute about subpoenas and notices to produce in the Probate List need to be able to identify the “interest” in the proceedings of each party as a foundational consideration. A party will have a sufficient “interest” if he, she or it has a right which will be affected by a disputed grant of probate or administration: Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [49].

  2. A sufficient interest having been identified, a foundational inquiry underpinning any order the Court might make is: What are the real issues in dispute in the principal proceedings?

  3. Parties should be in a position to address that inquiry by reference to the standard grounds for challenging a will: (a) absence of due execution; (b) absence of testamentary capacity; (c) absence of knowledge and approval; (d) fraud; (e) undue influence (coercion). If there is perceived to be another ground of challenge, it needs to be exposed to analysis.

  4. An inability to address the grounds of challenge to a will, and to demonstrate a reasonable connection between a ground relied upon and each subpoena or notice under review, might be a critical factor against allowance of such process.

  5. The use of a subpoena for the production of documents or a notice to produce to circumvent the Practice Note may constitute an abuse of process: Azzi v Volvo [2006] NSWSC 283 at [11]; Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502 at [23]-[24].

  6. If a subpoena for the production of documents, or a notice to produce, is served (without the leave of the Court) before the close of pleadings or before the service of affidavits setting out the nature of a party’s case, the existence of the Practice Note highlights a need for court process of those types to be supported by an identifiable, proper forensic purpose.

  7. If a subpoena or notice to produce is not supported by a proper forensic purpose, or if it is oppressive in nature or scope, or if its deployment is unreasonable in the prevailing circumstances, it is liable to be set aside as an abuse of the processes of the Court or, at least, as inappropriate upon an application of case management principles.

  8. In this context, what is, or is not, appropriate upon an application of case management principles will be governed by identification of real issues in dispute in the principal proceedings; the reasonableness of the deployment of the subpoena process in the particular case at the particular time; and the proportionality of costs involved in the use of the subpoena process, at the particular time, in the particular proceedings.

  9. Consideration of questions about proper forensic purpose, procedural oppression and case management principles generally need to take into account the issues in the particular case, bearing in mind the location of the onus of proof on particular issues and the reasonableness of any inquiry sought to be advanced.

  10. Allegations of fraud and undue influence need to be approached with caution. They are more easily made than justified. They hold an allure for disappointed beneficiaries which sometimes transcends cold rationality.

  11. Each case ultimately depends on its own facts.

PRACTICE AND PROCEDURE IN PROBATE LITIGATION

  1. Probate proceedings have several idiosyncratic features (apart from an ever-present, potential need to evaluate evidence concerning the conduct or words of a person, or persons, “absent” by reason of death or incapacity):

  1. If a will is to be given full legal effect, it needs to be “proved” to be the last will of a free and capable testator, proof of which is signified to the public by admission of the will to probate by an order of the court. A grant of probate, or letters of administration, represents both an order of the Court and an instrument of title: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [228]-[233] and [275]-[283].

  2. Probate litigation is “interest litigation” in the sense that one must have an identifiable (albeit not necessarily substantial) interest in the outcome of proceedings in order to be a party to them: Gertsch v Roberts (1993) 35 NSWLR 631 at 634B-C; Nobarani v Maricote [2018] HCA 36; (2018) 92 ALJR 806 at [49].

  3. Probate proceedings involve a strong public interest element focussed upon a need for probity, order and reliability in succession to property, and directed towards effect being given to the competent wishes and intentions of a deceased person: Photios v Photios [2019] NSWCA 158 at [77] (ii) and [79]. A grant of probate or administration is a public act, an act “in rem”. In a general sense, a grant “binds the world” because of its function as an instrument of title.

  4. The concept of “parties” to proceedings differs in the context of probate proceedings compared with ordinary civil proceedings. A person interested in the outcome of probate proceedings may be bound by the outcome even though not a party to the proceedings if on notice of the proceedings and possessed of a reasonable opportunity to intervene in them: Osborne v Smith (1960) 105 CLR 153 at 158-159. For that reason, in the interests of an orderly succession to property, the Court encourages notice of proceedings to be given to all persons potentially interested in the proceedings. Unless this is done, a will cannot be admitted to probate in solemn form.

  5. The procedure for a person interested in a deceased estate to file a caveat against a grant of probate or administration in respect of the estate is directed not to provision of notice to a particular person but, rather, to provision of notice to the Court not to allow proceedings to be taken without notice to the caveator: Moran v Place [1896] P 214 at 216-217 and 219-220; In re Emery [1923] P 184 at 187; In the Will of Mary Ann Clarke (1922) 22 SR (NSW) 228.

  6. Because of the public interest in an orderly succession to property, no form of privilege necessarily attaches to evidence about the circumstances in which a will was executed: In the Estate of Fuld, deceased; Hartley v Fuld (Attorney General intervening [1965] P 405 at 409-411; Re Estate Pierobon, deceased [2014] NSWSC 387; Boyce v Bunce [2015] NSWSC 1924 at [145] et seq.

  7. Principles governing the finality of litigation can operate differently in the context of a determination of an application for probate compared to other civil proceedings, focusing attention on the distinction between a grant of probate “in common form” and a grant of probate “in solemn form” and the circumstances in which a grant can be revoked: Estate Kouvakas [2014] NSWSC 786 at [236]-[274] and [284]-[317]. A grant in common form (customarily made, administratively, in non-contentious proceedings) is more readily revoked than a grant in solemn form (customarily associated with contested proceedings).

  8. Although legislation (currently, principally the Succession Act 2006 NSW, section 6) prescribes formal requirements for a valid will, it also (currently, by the Succession Act 2006, section 8) authorises admission to probate of an “informal will” which bears the character of a “will” if the Court is satisfied that statutory criteria have been met: Hatsatouris v Hatsatouris [2001] NSWCA 408 at [141]; Estate Angius [2013] NSWSC 1895 at [260]; Estate Moran; Teasel v Hooke [2014] NSWSC 1839 at [26]-[28]. An “informal will” can be made via a video or other form of electronic recording: eg, Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107. Informal wills are not uncommonly found on a deceased person’s computer or mobile phone.

  9. Probate proceedings might be pursued as a preliminary to, or in tandem with, an application for family provision relief under Chapter 3 of the Succession Act. In family provision proceedings Practice Note SC Eq No. 7 governs procedures for the disclosure of information about a deceased estate. Paragraph 9.1 of that Practice Note requires the administrator of an estate to make prescribed disclosures verified by affidavit. At the margins of those disclosure requirements, consideration of what is required is governed by what is reasonable, in light of what is required for a just determination of a claim for family provision relief, in all the circumstances: Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104 at [120] et seq. An administrator can be examined on the sufficiency or otherwise of his or her disclosures: Re Estate Grundy (No. 2) [2018] NSWSC 1495. The procedure followed on such an examination may adapt those applicable to an examination into the adequacy of answers to a subpoena or notice to produce: Pyoja Ltd v 284 Bronte Road Developments Pty Ltd (2006) NSWLR 1.

  10. Pleadings in proceedings for admission of a will to probate are action-based, “issue pleadings” (as distinct from narrative pleadings of material facts, “fact pleading”) in which questions of onus of proof and “presumptions” loom large and the grounds for challenging the validity of a will are, in practice, confined to comparatively few standard grounds, usually pleaded in the form of a general statement elaborated by particulars and supported by affidavits directed to contested issues.

  11. The ultimate (legal) onus on the propounder of a will to prove that it was the last free will of a free and capable testator carries with it the consequence that any contradiction of such a case is, in theory, available as a defence to an application for its admission to probate. In practice, a challenge to the essential (as distinct from formal) validity of a will is generally limited to standard grounds: (i) an allegation that the will-maker lacked testamentary capacity at the time the will was made; (ii) an allegation that the will maker lacked knowledge and approval of the contents of the will at the time it was made; (iii) an allegation that execution of the will was procured by fraud; and (iv) an allegation that execution of the will was procured by undue influence (meaning, in probate, coercion) by another person or persons. The propounder of a will generally bears the onus of proof on the first two issues (that is, an onus to prove testamentary capacity and knowledge and approval) as an incident of the ultimate onus. The onus of proof on an allegation of fraud or undue influence lies on the person making the allegation: Tobin v Ezekiel (2012) 83 NSWLR 757 at [55]. An allegation that execution of a will was attended by “suspicious circumstances“ is not an independent ground of challenge to a will, but an allegation that informs consideration of the standard grounds of challenge, particularly “knowledge and approval”. It is no less common for that.

  12. A challenge to “testamentary capacity” is commonly accompanied by a challenge to “knowledge and approval”. An allegation of a want of “knowledge and approval” is not uncommonly used as a vehicle for an allegation of “suspicious circumstances” as a means of displacing a presumption of validity arising from due execution of a will. Forensically, an allegation of “suspicious circumstances” is sometimes used as a bridge to allegations of “fraud” or “undue influence”, or as a substitute for them, although it needs to be recognised as falling a long way short of any allegation of “fraud” or “undue influence”, each of which must be pleaded explicitly, if advanced at all.

  1. In the disposition of probate proceedings, an exercise of the Court’s costs jurisdiction may require the Court to make an allowance for the possibility that the circumstances of the particular case led reasonably to an investigation of a document propounded as a will. In NSW, the costs jurisdiction in probate is generally described by reference to Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709F. As White J explained in Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562, the Court’s approach has historical origins in Mitchell v Gard (1863) 3 Sw & Tr 257; 164 ER 1280.

  2. Probate proceedings commonly require preliminary inquiries that not only involve a cost, but also require curial assistance. That assistance is commonly sought via the issue of subpoenas for the production of documents, the service of notices to produce to court, orders for the filing of affidavits on contentious issues and directions generally.

ONUS OF PROOF AND PRESUMPTIONS ON AN APPLICATION FOR ADMISSION OF A WILL TO PROBATE

  1. Proceedings for admission of a will to probate traditionally involve a unique combination of principles relating to the (legal) onus of proof and a shifting (evidentiary) onus arising from the “presumptions” of fact associated with procedural steps customarily taken in the process of execution of a formal will.

  1. A modern standard exposition of these principles is found in the judgment of Meagher JA (with whom Basten and Campbell J JA agreed) in Tobin v Ezekiel (2012) 83 NSWLR 757 at [43]-[ 49] and [51]-[53]:

“[43] The appellants' first argument, as the primary judge observed, raises for consideration the relationship between knowledge and approval of the contents of the will, which the proponent must establish, and undue influence which is a defence to be made out by the opponent. More broadly it raises the inter-relation of suspicious circumstances, undue influence and testamentary capacity which, as Sopinka J observed in Vout v Hay [1995] 2 SCR 876 at 885, has perplexed both courts and litigants since Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089.

[44] The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528.

[45] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453.

[46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528.

[47] Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42].

[48] In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995.

[49] It is then necessary to consider the relationship between the requirement that the will be that of a "free" as well as "capable" testator and the principles relating to the proof of undue influence. In this context undue influence means that the testator has been coerced into doing what he or she did not desire to do. What must be established is that execution was obtained by the exercise of "the power unduly to overbear the will of the testator": Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83; Baudains v Richardson [1906] AC 169 at 184-185; Craig v Lamoureux [1920] AC 349 at 357; Bailey v Bailey at 571-572; Bridgewater v Leahy [1998] HCA 66; 194 CLR 457 at [62] fn 55; Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; 14 BPR 26,867 at [60]-[64]. Where the will has been executed by a person of competent understanding and, judged by the circumstances of execution, "apparently a free agent", the burden of proving that the will was executed under undue influence is on the party who alleges it: Boyse v Rossborough (1857) 6 HL Cas 2 at 49; 10 ER 1192 at 1211; Parfitt v Lawless (1872) LR 2 P & D 462 at 469; Craig v Lamoureux at 356-357; Bailey v Bailey at 571-572; Trustee for the Salvation Army (NSW) Property Trust v Becker at [76].

…

[51] Circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the testator's knowledge and approval of the contents of the will. Tyrrell v Painton was such a case. There it was said by each of the members of the Court (at 157, 159) that those propounding the will must prove affirmatively knowledge and approval before the onus is cast on those who oppose the will to prove undue influence or fraud. For that reason it is appropriate, in the absence of good reason, to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent bears the onus: see the discussion in McKinnon v Voigt at 551, 557, 561-562. However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved: Low v Guthrie [1909] AC 278 at 281-282; Nock v Austin at 528; Vout v Hay at [29]-[30]. At the same time, the absence of any allegation of undue influence or fraud does not prevent the opponent putting knowledge and approval in issue and vigorously challenging the veracity of those propounding the will: Wintle v Nye at 294.

[52] In Boyse v Rossborough Lord Cranworth (at 44-45; 1209) distinguished between a testator who knows and approves the contents of the will and executes it of his or her own volition and a testator who knows and approves the contents of the will but executes it as a result of coercion or fraud. To illustrate the difference he gave this example (at 44-45; 1209):

‘If I meet a man in the street, and he puts a pistol to my breast, and threatens to shoot me if I do not give him my purse, and to save my life I yield to his demand; or if a neighbour, meaning to steal my horse, asks for the loan of it, stating that he wants it in order to go to market, and trusting to this representation I deliver it to him, and then he rides off and sells it,-in both these cases it was my will to hand over the purse and the horse; but the law deals with the case as if they had been obtained against my will, my will having been the result in one case of fear, and in the other of fraud. The same principles must guide us in determining whether an instrument duly executed in point of form, so far as legal solemnities are concerned, is or is not a valid will.’

[53] That analysis will not apply to all instances involving the exercise of undue influence or fraud. For example, coercion may result in the testator signing an instrument whose contents are to some extent unknown. Or the testator may be mistaken as to the contents of the will as a result of fraud. In such cases the circumstances may also give rise to a suspicion or doubt as to knowledge and approval and the satisfaction of the requirement of affirmative proof would likely disprove the suspected undue influence or fraud. In the remaining cases, notwithstanding that the court may be satisfied that the testator appreciated what he or she was doing, there will still be a live issue as to whether what was done was as a result of coercion or fraud”.

  1. In probate practice, allegations of “undue influence” and “fraud” are fundamentally different concepts: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; (2007) 14 BPR [98369] at [61] and [63]-[69]. To prove “undue influence” in probate, it must be shown that the testator did not intend and desire the disposition of property made by a will; it must be shown that he was coerced into making it. “Fraud”, sufficient to result in the invalidation of a testamentary disposition, is concerned with misleading or deceptive conduct; with fraud, there is no overpowering of the volition, no coercion. Whereas “undue influence” coerces a testator, “fraud” misleads him.

  2. The traditional probate presumptions are presumptions of fact (not law), liable to be rebutted by evidence, but their gravitational pull on the conduct of an application for admission of a will to probate is substantial.

  3. The increasing prevalence of applications for admission of an “informal will” to probate may, in time, call into question the utility of analyses in terms of “presumptions”. I repeat here what I wrote in ReEstate of Wai Fun Chan, deceased [2015] NSWSC 1107 at [18]-[24]:

“[18] By its very nature, an informal will (that is, a testamentary document not executed in accordance with section 6) does not, without fundamental reservations, attract a traditional “presumption” of capacity or knowledge and approval arising from “due execution”.

[19] However, a reference to a “presumption” of this character in probate discourse is more empirical than prescriptive. It is an aid to the investigation of questions of fact, and to the determination of disputed questions of fact, in a world of imperfect knowledge. It might better be understood as an inference commonly drawn from established facts: Calverley v Green (1984) 155 CLR 242 at 264.

[20] So understood, the wisdom probate “presumptions” encapsulate may be able to be harnessed in dealing with informal wills.

[21] For example, if (as in the present proceedings) an informal will is rational on its face, and the process of its creation is equally, patently rational, common experience would lead most observers to infer (in the absence of some other fact) that the will-maker was mentally competent and that he or she knew and approved of the contents of the will.

[22] The circumstance (fact) that the informal will was created at the instigation, or (as in this case) with the active involvement, of a substantial beneficiary would be likely, in common experience, to raise a suspicion about the status of the document which would, pending closer examination of all material facts, displace any inference of regularity that might otherwise commonly be drawn.

[23] The facts that are to be regarded as “material” in this context are those that bear upon a decision as to whether the particular document was the last will of a free and capable testator.

[24[ In each case the essential question, in deciding whether a particular document should be admitted to probate in whole or part, is whether it was the last will of a free and capable testator: Woodley-Page v Symons (1987) 217 ALR 25 at 35”.

  1. That the traditional language of probate law and practice needs to be understood in a contemporary setting may be illustrated by two judgments of the Court of Appeal.

  2. In Zorbas v Sidiropoulous(No. 2) [2009] NSWCA 197 at [64]-[65] Hodgson JA (with whom Young JA and Bergin CJ in Eq. agreed) wrote as follows:

“[64] As regards the applicable law, I would adopt the exposition of it by Windeyer J in Kerr v Badran [2004] NSWSC 735 at [48]-[50]:

[48] Both medical experts were referred to the passage in Banks v Goodfellow which since that time has been accepted as the proper test in cases where testamentary capacity is the issue. I set it out once again, because this case requires proper attention to be paid to it. The test is at p 565 of the judgment as follows:

It is essential to the exercise of such a power that a testator shall understand the nature of the act, and its effects; shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

The onus of proof is explained in Bailey v Bailey (1924) 34 CLR 558 and Estate of Hodges, dec’d; Shorter v Hodges (1988) 14 NSWLR 698.

[49] In dealing with the Banks v Goodfellow test it is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at advanced age, problems which arise with age, such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing “the extent” of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life. The decision of Gleeson CJ in Estate of Griffith dec’d; Easter v Griffiths (1995) 217 ALR 284 at 290 must be kept in mind where he said:

The formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to disclose one’s assets by will is an important right, and a determination that the persons lacked (or, has not been shown to have been possessed) a sound disposing mind memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult.

This, of course, was a case of alleged delusion, but the general requirement for care is involved in all contested probate actions. Although he was in dissent, Kirby P in para 8 of his judgment, emphasised the need for caution and stated that medical evidence must be carefully looked at to ensure that it was considered in light of the relevant test and not what the medical expert using medical terminology considered to be the legal position.

[50] Next it is important to bear in mind the decision in Worth v Clasohm (1952) 86 CLR 439. This explained that in a case where a doubt as to capacity is raised — thereby as explained in Shorter, satisfying the evidentiary onus on the defendant, the onus passing to the propounder to satisfy the court that the will propounded is valid — this does not mean that a doubt is enough; the doubt must be such that the court considers it sufficient to prevent its finding for the will propounded.

[65] The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for common sense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation”.

(c)   The deceased had material hearing difficulties;

(d)   The deceased did not appreciate the nature and extent of her property including the respective rights of management and other entitlements relating to the classes of shares [in a family company].

(e)   The deceased did not comprehend and appreciate the claims to which she ought to give effect, including that the 3000 “B” class shares in [the family company] were held by, or on the half of, her son [the defendant], or alternatively if the beneficial ownership had been duly transferred, he had not been paid for them; and

(f)   In purporting to describe her property in the 13 March 2017 will, the deceased erred as follows:

(i)   the statement in clause 14(a) of the 13 March 2017 will is incorrect in respect of the identified transferees of [a designated strata title property] when, in fact in or about January 2016 the deceased had already transferred that land to [the third plaintiff] only; and

(ii)   in the premises of paragraph 4.f.1, the statement in clause 14 (a) of the 13 March 2017 will appears to be incorrect with respect to the recipients of vendor finance for the purchase of [the strata title property]”.

  1. These particulars hint at an unarticulated challenge to the deceased’s testamentary capacity to make any will. They allude to the first three elements of testamentary capacity classically stated by Banks v Goodfellow (1870) LR 5 QB 549 at 565: “It is essential to the exercise of [the power to make a will] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; [and] shall be able to comprehend and appreciate the claims to which he ought to give effect. …”

  2. The defendant’s “particulars” of a want of knowledge and approval cannot be taken, by sleight of hand, to have the effect of advancing an allegation of testamentary incapacity Particulars cannot rise above the pleading they particularise.

  3. In conformity with directions given on 10 December 2018, the second plaintiff (a principal in the firm of solicitors acting for the plaintiffs in these proceedings) on 15 February 2019 swore an affidavit in which (repeating statements in an earlier affidavit sworn by him on 8 October 2018) he deposed to the circumstances in which the will dated 13 March to 2017 was prepared and executed. He also deposed to having acted for the deceased in the preparation and execution of 15 wills (including the will dated 5 November 2015) in the period between 2003 to 2017 inclusive.

  4. In his earlier affidavit the third plaintiff deposed to the following (in paragraph 7): “At no stage [in the period between 2003 to 2017] did I have any concerns about [the deceased’s] capacity to understand either the contents of her will, or what I was telling her in English about her various (and many) draft wills. While English was not her first language, [the deceased] communicated perfectly well in English. If there were aspects of her will she was not happy with, she would give me clear instructions to amend them or we would agree to meet again”.

  5. An oddity of the defendant’s subpoenas and notices to produce, which suggests a consciousness of a need to avoid oppression, is that they seek the production of documents limited to the period between 2003 – 2017, though the defendant’s pleadings challenge wills of the deceased going back to 1995.

The Defendant’s Hospital Records Subpoena

  1. The defendant’s subpoena addressed to Concord Hospital sought production of the following class of documents:

“In respect of admissions of the patient Irene ‘Rene’ Soulos (‘the deceased’), date of birth 27 November 1999, copies of all:

a)   attendance and consultation notes;

b)   observation charts;

c)   records of diagnoses and medications prescribed with respect to pain experienced by the deceased;

d)   reports; and

e)   hospital administration and discharge summaries,

to the extent dated or recorded in the period from 7 December 2003 to 27 January 2018”.

  1. On the defendant’s pleadings, I am not satisfied that there is any proper forensic purpose in the defendant having access to any hospital records bearing upon the deceased’s medical condition otherwise than such as might bear upon the wills dated 8 February 2017 and 13 March 2017. If there is to be any greater access to subsequent materials, the defendant’s pleadings need to be put on a more rational foundation. As they stand, the case the defendant seeks to advance on his cross-claim appears to have, in its inconsistency at least, a tendency to cause prejudice, embarrassment or delay in the proceedings.

  2. The subpoena to the Hospital was filed on 1 November 2018, fully one month before the defendant filed written submissions which implicitly confined his testamentary capacity case to the wills dated 8 February 2017 and 13 March 2017. The defendant’s statement of cross claim implicitly asserts that the deceased had capacity to make the will dated 5 November 2015, which (on an alternative case) he seeks to have admitted to probate.

  3. I have considered the possibility that access to the Hospital records could be forensically relevant to the third, fourth and fifth particulars to the general allegation of a want of knowledge and approval set out in the defendant’s cross-claim. The defendant submits that the state of the deceased’s health from time to time could be relevant to whether she had, or did not have, knowledge and approval of the contents of complex (albeit, to some extent, formulaic) wills. That contention is not without force, but it does not necessarily follow. Nor does it dispel an underlying concern that, by expansive particulars, the defendant seeks to fish for game larger than his pleaded case.

  4. I am not satisfied that the Hospital records are or may be relevant or that, in the interests of justice, they should be made available for inspection by the defendant save insofar as they may bear upon the question of the deceased’s testamentary capacity to make her 2017 wills. The defendant has filed affidavits bearing upon the question of knowledge and approval. He has no obvious need for access to Hospital records created before the date of the deceased’s 2015 will he propounds, or thereabouts. He will have, I anticipate, an opportunity to cross examine the second plaintiff (the deceased’s solicitor) at a final hearing. In fairness to the plaintiffs, and beneficiaries under the 2017 wills, he cannot fudge his generalised allegation of a want of knowledge and approval, referable to so many wills over so long a period of time, by hoping to bolster it with a hint of testamentary incapacity via medical records. In light of his pleadings, as particularised, any application for unrestricted access to the Hospital records appears, at present, to be a “fishing expedition” beyond the reasonable.

  5. Given the state of the defendant’s pleadings, I propose to defer making any decision about his access to the Hospital records until clarification of the case he seeks to make on his pleadings, including what he says about: (a) the validity of the deceased’s will dated 5 November 2015; (b) the location of the onus of proof vis-à-vis wills of the deceased predating the will dated 5 November 2015; and (c) the nature and scope of the particularised allegations of the want of knowledge and approval.

The Defendant’s Solicitor’s File Subpoena, and Ancillary Notices to Produce

  1. The defendant’s subpoena for production addressed to the solicitors for the deceased (presently also the solicitors for the plaintiffs) seeks production of the following classes of documents (with editorial adaptation):

“1.   All documents created or dated on or after 7 December 2003 and before 27 January 2018 evidencing:

a)   file notes taken by the second plaintiff… (or his agent);

b)   records of questions, answers, instructions and observations;

c)   records of other communications or interactions with or from [the deceased]; or

d)   records of interactions and communications with or from the first or third plaintiffs,

in connection with any will or proposed will or testamentary document of [the deceased], including, as recorded in relation to the documents purporting to be [wills of the deceased, respectively dated 4 June 2008, 11 June 2010, 12 May 2011, 18 May 2011, 13 December 2012, 22 March 2013, 30 January 2015, 11 March 2015, 20 October 2015, 5 November 2015, 8 February 2017 and 13 March 2017].

2.   All files relating to any will or codicil of [the deceased] in the period in paragraph 1.

3.   Copies of the foregoing where the originals are not held and produced”.

  1. The notices to produce to court respectively served on each of the three plaintiffs are formulaic in the sense that they seek production of the same classes of documents sought in the subpoena addressed to the solicitors.

  2. In light of the affidavits sworn by the second plaintiff, as the solicitor who supervised the preparation and execution of the deceased’s wills in the period identified in the subpoena, there is little, if any, forensic purpose in any of the notices to produce. In essence, the defendant seeks production of the solicitors’ file, or files, relating to preparation of the deceased’s wills dated 4 June 2008 or thereafter.

  3. On that basis, I propose to allow the subpoena to stand, but to order that the notices to produce be set aside.

  4. If and to the extent the solicitors have file records relating to the deceased’s wills answering the description of the subpoena, those records can be (if need be) produced comparatively easily. In the circumstances of the case, the notice to produce directed to the second plaintiff is simply repetitive at best; there is no suggestion that a notice to produce, as distinct from a subpoena, is required for evidentiary purposes.

  5. I propose to order that the notices to produce directed to the first and third plaintiffs be set aside as oppressive, having regard to the length of the period in respect of which documents are required to be produced, and to the fact that preparation and execution of the deceased’s wills was supervised by the solicitors.

  6. I propose to defer making any order referrable to the subpoena addressed to the solicitors for the deceased until the status of the defendant’s pleadings, and the case he seeks to make, is clarified. There is no suggestion that a production of subpoenaed records is necessary to preserve them against destruction pending further order of the Court.

Clarification of the Defendant’s Pleadings/Case

  1. The proper management of the principal proceedings requires that the state of the defendant’s pleadings, and the case for which he contends by reference to them, be clarified before the defendant is allowed further deployment of the subpoena process.

  2. In order to allow this to be done, I propose, by order of the Court, to call upon the defendant to show cause why his pleadings (and, especially, his statement of cross-claim) should not be struck out or otherwise summarily determined. That is likely to involve consideration, inter alia, of: (a) whether the pleadings are, in whole or part, an abuse of process (Photios v Photios [2019] NSWCA 158); and (b) if not, whether case management orders are nevertheless required to ensure the conduct of a fair and orderly hearing of the parties’ competing claims

  3. If the defendant maintains his contentions about the validity of the wills pre-dating the will dated 5 November 2015, and if he is held entitled to do so, the interests of justice might best be served by an order for the separate, preliminary determination of the question whether the deceased’s last three wills (assessed successively, in reverse chronological order) were valid.

  4. The interests of justice might, in any event, require that an order be made for the separate, later determination of the defendant’s application for family provision relief.

  5. The defendant’s forensic strategy appears to bundle up a broad mix of amorphous allegations, extending over a lifetime, in the expectation of securing an advantage at a final hearing in the character of a roving commission with few constraints upon what is relevant and what is not.

  6. If orders are made for the separate determination of questions, in so many staged hearings as may be necessary for an orderly and fair determination of all questions in dispute, they might have implications for the extent to which documents should be brought into court on subpoena and accessed at this stage of what could be protracted proceedings.

  7. If the defendant maintains his cross-claim in all its dimensions, and is held entitled to do so, considerations of costs might also loom large.

Proposed Orders

  1. Subject to allowing the parties an opportunity to be heard as to necessary directions and questions of costs, I propose to make orders to the following effect:

  1. ORDER that the three notices to produce to court dated 29 October 2018, respectively addressed to each plaintiff, be set aside.

  2. ORDER that no access be granted to any party to documents produced on subpoena by Concord Repatriation General Hospital pending further order of the Court.

  3. ORDER that the plaintiffs’ notice of motion filed 14 November 2018 otherwise be adjourned pending consideration of the defendant’s pleadings or further order.

  4. ORDER that the defendant show cause why his pleadings should not be struck out, or otherwise summarily determined, as an abuse of the process of the Court.

  5. ORDER that the proceedings be listed before Lindsay J, on a date to be fixed, for further hearing of the plaintiff’s motion and directions generally.

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Amendments

24 July 2019 - corrected paragraph numbering and formatting.

Decision last updated: 24 July 2019

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