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Russell v Ceylan

Russell v Ceylan

Case [2025] NSWSC 1044 11 September 2025

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Russell v Ceylan [2025] NSWSC 1044
Hearing dates: In Chambers
Date of orders: 11 September 2025
Decision date: 11 September 2025
Jurisdiction: Equity - Probate List
Before: Slattery J
Decision:
Motion dismissed. Parties directed to agree upon an appropriate costs order based on the Court’s observations about costs or prepare submissions concerning costs with a cost capping order made with respect to any subsequent submissions on costs.

Catchwords:
PRIVATE INTERNATIONAL LAW — Applicable law — Choice of law rules — Immovable property – deceased died domiciled in Germany with moveable assets in Germany and New South Wales – deceased owned real property in New South Wales – a German citizen applies for probate of the deceased’s 2021 will made in Germany of which he is the beneficiary – Australian citizen applies for administration of the deceased’s 2018 will (made in Germany) and in the alternative probate of the deceased 2013 will (made in New South Wales) both of which he is the beneficiary – issue concerning the deceased’s testamentary capacity and knowledge and approval of the 2021 will – German citizen commences proceedings for a summons for administration in 2022 – Australian citizen lodges caveats in answer to those proceedings – German citizen commences proceedings in Germany – nature of the German proceedings in issue – Australian citizen commences these proceedings in New South Wales in 2025 – German citizen applies to dismiss these proceedings on forum non conveniens grounds, or in the alternative, to stay these proceedings until the German courts have finally decided the issue of the deceased’s capacity to make and his knowledge of and approval of the 2021 will – whether New South Wales is a clearly inappropriate forum for the conduct of these proceedings.

Legislation Cited:
Act on proceedings in Family Matters and in Matters of Noncontentious Jurisdiction (Germany)
European Succession Regulation (EU-Reg)
Civil Procedure Act, s 98(1)
Evidence Act 1995, ss 75, 79, 174, 190
Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions 1961
Probate and Administration Act 1898, s 74
Succession Act 2006, ss 6, 47-50
Uniform Civil Procedure Rules 2005, rr 11.6, 42.4

Cases Cited:
Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1967] 1 AC 853
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Freke v Lord Carberry (1873) 16 LR 6 Eq 461
Henry v Henry (1995) 185 CLR 571
In re Moses [1908] 2 Ch 235
In the Application of White (1975) 2 NSWLR 125
In the Estate of Hughes – Roberts Deceased [2018] SASC 133
Lewis v Balshaw (1935) 54 CLR 188
Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7
Noel Mockett Brown as executor of the estate of the late Petar Vezmar (aka Peter Vezmar) [2015] NSWSC 1470
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Russell v Ceylan

Details

AGLC: Russell v Ceylan [2025] NSWSC 1044
Case: [2025] NSWSC 1044
Decision Date: 11 September 2025

CaseChat Overview and Summary

In the case of Russell v Ceylan, the dispute arises from the conflicting claims of two individuals regarding the estate of a deceased person who was domiciled in Germany but owned real property in New South Wales. The German citizen, Ceylan, applied for probate of a 2021 will made by the deceased in Germany, while the Australian citizen, Russell, sought administration of a 2018 will also made in Germany and, in the alternative, probate of a 2013 will made in New South Wales. The issues central to this case revolve around the applicable choice of law rules, particularly concerning the deceased’s testamentary capacity and knowledge and approval of the 2021 will.

The primary legal issue was whether the New South Wales courts should entertain the proceedings initiated by Russell, given that Ceylan had already commenced proceedings in Germany. The court had to consider whether New South Wales was an appropriate forum for these proceedings under the doctrine of forum non conveniens, and whether the proceedings should be stayed pending the outcome of the German courts’ determinations on the deceased's capacity and the validity of the 2021 will.

The court concluded that New South Wales was not a clearly inappropriate forum for the conduct of these proceedings. It found that the German proceedings, which were primarily focused on the deceased's capacity and the 2021 will, did not fully address the issues relevant to Russell's claims under the 2018 and 2013 wills. The court reasoned that the German proceedings did not provide a complete resolution of the issues at hand, and that it was necessary for the New South Wales courts to determine the validity of the 2018 and 2013 wills in the context of the estate's New South Wales property. Consequently, the application to dismiss the proceedings on forum non conveniens grounds or to stay them pending the German courts' decisions was dismissed.

The court ordered that the proceedings initiated by Russell should continue, allowing the New South Wales courts to determine the validity of the 2018 and 2013 wills in relation to the deceased’s New South Wales property. This decision ensures that all relevant aspects of the estate are properly addressed in the jurisdiction where the property is located.

Orders