Russell v Ceylan

[2025] NSWSC 1044

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

Phillipson – Stow v The Inland Revenue Commissioners (1961) AC 727

Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265

Re Appln of NSW Trustee & Guardian [2019] NSWSC 156

Re Barker [1995] 2 VR 439

Re Estate of Fuld (No. 3) [1968] P 675

Re Hernando, Hernando v Sawtell (1884) 27 Ch D 284

Re Piercy; Whitwham v Piercy [1895] 1 Ch 83

Re Ulvstig [2000] QSC 66

Schnabel v Yung Lui and Louis [2002] NSWSC 15

Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; 97 ALR 124

Zeferos v Panagos (Supreme Court (NSW), Waddell J, 4 December 1985, unrep)

Texts Cited:

Janes, S, Liebhold, D and Studdert, P, “Wills, Probate and Administration Law in NSW”, Lawbook Co, 2nd ed, 2020

Nygh’s Conflict of Law in Australia 10th ed, Lexis Nexis, 2020

Category:

Procedural rulings

Parties:

Plaintiff/Respondent: Edward William Russell
Defendant/Applicant: Adem Ceylan

Representation:

Counsel:
Plaintiff/Respondent: A Katsoulas
Defendant/Applicant: A Saleh

Solicitors:
Plaintiff/Respondent: National Probate and Estates Group
Defendant/Applicant: Dammholz & Co

File Number(s):

2025/00075510

Publication restriction:

N/A

JUDGMENT

1. Uve Bierzunski died on 27 March 2022 aged 83. Born in Germany, the deceased had married an Australian, Dr Janet Rosalie Shephard (nee Russell). They had no children together. After she died on 21 November 2011, the deceased returned to the town of Seelze, near Hannover in Lower Saxony. He was domiciled in Germany at the time of his death. His estate consisted of an apartment in the Sydney suburb of Newport Beach (“the Newport property”) and money in bank accounts in Australia and in Germany.

2. By Summons filed in this Court on 19 October 2022 (Proceedings No. 2022/00267093 – “the 2022 proceedings”), Adem Ceylan, a friend and neighbour of the deceased, sought administration of the deceased’s estate with the will annexed, being a will executed before a German notary on 14 June 2021 (“the 2021 will”). The 2021 will makes Mr Ceylan the deceased’s heir.

3. Edward William Russell, the brother of the deceased’s late wife Janet, filed several caveats opposing a grant of administration of the 2021 will to Mr Ceylan in New South Wales. The 2022 proceedings have not progressed to a hearing. Mr Ceylan then commenced an application for probate of the 2021 will in Germany (“the German proceedings”). The German proceedings are presently unresolved.

4. By a Statement of Claim, filed on 25 February 2025 (Proceedings No. 2025/0075510 – “the 2025 proceedings”), the plaintiff, Dr Russell, seeks a grant of letters of administration with the will annexed, of a will the deceased made on the 30 July 2018 (“the 2018 will”), and in the alternative, an order that he be granted probate in solemn form of the deceased’s will of 7 October 2013 (“the 2013 will”). The deceased’s 2018 will gives the whole of this estate to the plaintiff. The deceased’s 2013 will disposed of his Australian estate to the plaintiff and to other persons.

5. On 7 April 2025 Dr Russell applied by motion for the appointment of an administrator to manage the Australian assets in the deceased’s estate. After a contest on 8 May 2025 in this Court’s Probate List the Court appointed the plaintiff as an interim administrator of the deceased’s Australian assets under Probate and Administration Act 1898, s 74, to ensure that the Newport property and the Australian bank accounts were efficiently managed under proper authority pending the determination of these proceedings and the German proceedings.

6. On 30 April 2025 Mr Ceylan filed a motion seeking an order under Uniform Civil Procedure Rules (“UCPR”) r 11.6(2)(b), dismissing or in the alternative staying the proceedings on the basis that New South Wales is a clearly inappropriate forum for their determination. This is the matter for decision in these reasons.

7. After written submissions and argument on 13 June 2025 the Court adjourned the proceedings into chambers for further consideration and relisting in the Probate List if further evidence or submissions were required by the Court. In the event further submissions have not been required.

8. Mr A Katsoulas of counsel appeared for Dr Russell, the plaintiff/respondent on the motion, instructed by National Probate and Estates Group. Mr A Saleh of counsel appeared for Mr Ceylan, the defendant/applicant on the motion, instructed by Dammholz & Co.

The Deceased, His Estate and the German and Australian Proceedings

9. The Estate. The deceased’s assets in this jurisdiction comprise the Newport property, with an estimated value of A$1,000,000, and an NAB bank account with an estimated value of A$420,000. The details of the deceased’s estate in Germany, or otherwise beyond this jurisdiction, have not been the subject of detailed evidence in these proceedings and slightly different figures were used in the Summons for administration initiating the 2022 proceedings. Because the deceased did not reside in Australia he will have to pay capital gains tax upon the sale of the Newport property at unfavourable terms. The estate’s liability to capital gains tax has not yet been quantified.

10. Counsel informed the Court from the Bar table that the deceased’s German estate comprised approximately €100,000 in cash. This is generally consistent with a declaration that the deceased made before the notary at the time of the 2021 will was executed that his estate had an approximate value of €80,000.

11. The Three Wills. The deceased’s three wills are well described in the evidence. The earliest of these wills, the 2013 will, was drafted by a Victorian solicitor, and executed in that solicitor’s office in Victoria, in circumstances which would satisfy Succession Act 2006, s 6 and is formally valid. The 2013 will specifically disposes of the whole of the deceased’s estate within Australia to Dr Russell but if he does not accept the estate there is a gift over to certain charities. Dr Russell’s case is that the gift to him and the gifts to these charities were in accordance with the wishes of the deceased’s late wife, wishes with which the deceased agreed. This 2013 will is specific in not disposing of the deceased’s assets outside Australia. Clause 4 bequeaths “the whole of my real and personal assets of whatsoever nature and wheresoever situated in Australia (but not anywhere else) on various trusts but primarily to Dr Russell. From about the time of making the 2013 will the deceased returned to Germany permanently.

12. The 2018 will, the primary will that Dr Russell propounds, in contrast to the 2013 will, is a simple handwritten and unwitnessed document in the German language which was executed in Germany. Dr Russell was the sole beneficiary of the 2018 will. The 2018 will is written in the German language and was executed while the deceased was living in Germany. It provides (in translation) as follows:

“Uve Bierzunski

Last Will

In case of my death, I bequeath all my assets to Dr Bill Russell - residing in Brunswick Victoria [address not published].

Seelze, 30 July 2018

Uve Bierzunski’

13. The 2018 will would not satisfy the Succession Act, s 6 requirements for formal validity. It was submitted by counsel, and was not contested, that it fulfils the requirements for formal validity under German law.

14. Mr Ceylan propounds the 2021 will. It is submitted on behalf of Mr Ceylan on the motion that the 2021 will was executed in compliance with German law. It was executed before a notary. But it does not appear to fulfil the requirements for formal validity under Succession Act s 6. After execution it was kept in the probate registry of the Local Court at Neustadt am Ruebenberge in Hannover. The 2021 will makes declarations as to the deceased’s German citizenship, his marriage to Dr Shepherd, her death in 2011, the fact that he has not entered a new marriage and does not have children. Then it makes the following declaration (in translation):

“I am not prevented from making this will, but as a purely precautionary measure I hereby revoke all previously made decrees mortis causa.”

15. He then declares (in translation from the German) the following:

“I hereby appoint as my sole heir (full heir).

Adem Ceylan born on 1 January 1971 [in Seelze]

As substitute heirs I appoint his daughters

Leyla Ceylan

And

Aylin Ceylan

each in equal parts

I am not making any further dispositions of property upon death today”

16. The 2021 will does not specifically referred to the deceased’s Australian assets or seek to distinguish them from his German estate. An argument as to the construction of the 2021 will can be anticipated at a final hearing, as to whether the 2021 will (a) disposes of the deceased’s German estate or his whole estate in Germany and Australia, and (b) whether the revocation clause describing “all previously made decrees mortis causa” includes previous wills made in Australia or applies with respect to his estate in Australia, or whether it just refers to the 2018 will made in Germany. For the present, the Court expresses no view about the outcome of such future contests, other than to note that they lie on the horizon in future contested litigation.

17. Dr Russell’s case is that the deceased had advanced dementia by June 2021 when the 2021 will was executed, only nine months before the deceased’s death. Dr Russell alleges the deceased’s dementia was sufficient to deprive him of testamentary capacity at the time of 2021 will.

18. Dr Russell’s Statement of Claim pleads the following matters as raising suspicious circumstances about the deceased testamentary capacity. Dr Russell alleges that at the time of the 2021 will the deceased was suffering cognitive impairment due to significant deficits in short-term and long-term memory, the deceased did not know the nature and value of his estate including his assets in Australia, the deceased was unable to undertake a serial subtraction test beyond the first step, the deceased did not know the day of the week or the current date, the deceased did not know the current season, the deceased undertook the Shulman clock test with the result evidencing serious impairment, the deceased was in danger of being financially exploited and at the time instructions were given to the 2021 will that Mr Ceylan was present.

19. The medical or other evidence that might support these contentions by Dr Russell was not advanced on the motion. Correspondence from the solicitors for Dr Russell in July 2024 elaborates on some of the evidence that will be led at final hearing on behalf of Dr Russell about the deceased’s capacity. This includes evidence that the deceased came to the attention of the Hannover guardianship authorities in 2017 as a vulnerable person, suffering from significant physical and cognitive impairments and “underweight with poor physical condition and unkempt” and the probable victim of fraudulent activity. He was also described in a separate police report on another occasion as being disorientated on the streets, wearing dirty clothes and making “a neglected impression”. A psychiatrist in March 2018 diagnosed him with dementia and reduced mental capacity. Dr Russell will say that the deceased’s cognitive health declined after that. Medical evidence from a Dr Aselhmer shortly after the making of the 2021 will assessed the deceased as having significant long and short-term memory impairment, reduced attention and concentration, vulnerability to exploitation, being not oriented in time and in need of a control guardian. More recent foreshadowed evidence from relatives in Germany and from Dr Russell is said to indicate deterioration after the 2021 will.

20. At present these are mere untested allegations and are no doubt strongly contested. The notarial process at the time of execution of the 2021 will involved testing of the deceased’s testamentary capacity. But Dr Russell argues that Mr Ceylan was in the room when the 2021 will was made and that some of the evidence suggests that the deceased was repeating Mr Ceylan’s wishes. This too will no doubt be contested.

21. But the Court can accept that this will be the nature of the contest concerning the validity of the 2021 will and the contest will undoubtedly draw upon several German witnesses both expert and non-expert. On this motion such evidence is untested. It is not necessary for the Court to form an opinion about the deceased’s testamentary capacity for the purposes of deciding this motion.

22. The New South Wales Proceedings. The defendant filed a Notice of Motion on 30 April 2025, seeking an order pursuant to Uniform Civil Procedure Rules 2005, r 11.6(2)(b) dismissing or, in the alternative, staying the proceedings on the basis that New South Wales is an inappropriate forum.

23. After Mr Ceylan filed his Summons for administration with the will annexed with the Registry of this Court for the 2021 will on 19 October 2022, Dr Russell filed a series of caveats in opposition, on 20 December 2022, 7 June 2023, 23 November 2023, 13 May 2024, and 6 November 2024. Each of these caveats declared his interest as the sole beneficiary of the deceased’s 2018 will, and sole beneficiary of the deceased’s 2013 will.

24. On 27 July 2023, nine months after Mr Ceylan’s Summons was filed in this Court to initiate the 2022 proceedings, and after three of Dr Russell’s caveats been filed, Mr Ceylan applied for a certificate of inheritance in Germany.

25. On 20 May 2024, the solicitors for Mr Ceylan communicated with the Registry of this Court, that the validity of the 2021 will was to be determined under German law, and that it would not be practical to pursue the application he had made in the 2022 proceedings in this jurisdiction prior to the relevant German court making its decision on the matter.

26. On 25 February 2025, Dr Russell initiated the 2025 proceedings by filing his Statement of Claim seeking letters of administration of the 2018 will, or in the alternative, of the 2013 will and pleading the alleged suspicious circumstances surrounding the execution of the 2021 will.

27. On 8 April 2025, Dr Russell filed his motion seeking the appointment of an independent interim administrator to the deceased’s estate in New South Wales. Dr Russell’s concern was to ensure that there was an appropriately appointed authority until the final resolution of these proceedings to (a) instruct agents for collecting the rent and to make appropriate decisions on behalf of the estate about letting the Newport property, as well as (b) opening and conducting an estate account to collect rent and pay all out goings related to the property, and (c) paying the estate’s major external liabilities such as land tax which was by then becoming pressing.

28. Mr Ceylan opposed any appointment of an administrator including an independent administrator in New South Wales on the basis that the estate could be satisfactorily managed cooperatively between the parties as it had been since the deceased’s death in 2022.

29. Mr Ceylan then filed his present stay motion on 30 April 2025. But the Court decided in the meantime to deal first with the appointment of an independent interim administrator. The Court called for the parties to provide the names of potential independent administrators.

30. On 8 May 2025, although the parties had supplied the names of potential independent administrators, the Court decided that the estate did not need to bear the costs of an independent administrator for the limited purpose of managing the rental at the Newport property and paying land tax and other outgoings and giving instructions to the managing agent. So, the Court decided that Dr Russell should be granted interim administration pending resolution of these proceedings. But this was under strict conditions of accountability for his financial decisions and with obligations of transparency to provide regular information to Mr Ceylan’s legal representatives. On 24 July 2025, the Court slightly narrowed the scope of this interim administration.

31. The Court appointed one of the parties as the interim administrator because of the relatively small size of the estate, the likely costs to be incurred in in the proceedings, the nature of the work likely to be undertaken by the interim administrator, and the location of Dr Russell in this jurisdiction, compared to Mr Ceylan in Germany. To appoint an independent interim administrator incurring professional fees would be wasteful of estate resources, given the limited scope of work to be undertaken, and to appoint Mr Ceylan, a resident of Germany would have defeated some of the efficiencies the Court was seeking to achieve by an appointment.

32. The German Proceedings – admission of expert evidence. The evidence about the German proceedings is contentious and unsatisfactory. But this is an interlocutory application, and the Court has decided to do the best it can with the materials that are available. The Court is entitled under Evidence Act 1995, s190(3) to order that the provisions of Evidence Act Part 3.3, relating to expert evidence, not apply if the application of those provisions would cause or involve unnecessary expense or delay. Here the Court infers that the parties each made deliberate choices about what evidence of foreign law they would advance and rely upon on this interlocutory application and in the Court’s view it is not unfair to either party for the Court to admit into evidence and consider the expert evidence on foreign law.

16. The evidence of foreign law unfolded in the following manner on the motion. The solicitor for the plaintiff, Mr Steven Dammholz provided an outline of evidence in relation to the course of the German proceedings in his initial affidavit of 21 April 2025. This evidence included legal commentary upon the status of the German proceedings and the effect of German law. Mr Dammholz has expertise in German law. He explained in the affidavit in support of the Summons in the 2022 proceedings, and the Court accepts, that he is a fully qualified and admitted German solicitor frequently practising in German succession law and familiar with German probate proceedings.

17. Expert evidence in reply was advanced on behalf of Dr Russell from Mr Veit Klinger, a legal practitioner in Berlin, in an affidavit of Mr Klinger dated 26 May 2025. This in turn was replied to by another affidavit about German law from Mr Dammholz sworn on 4 June 2025 a little over a week before the motion was argued on 13 June 2025.

18. At the hearing Mr Saleh objected to the evidence of Mr Klinger on the basis that he did not have specialised knowledge training or experience, and he could not provide expert witness evidence as was intended by his affidavit in conformity with Evidence Act s 79. Mr Saleh tendered relevant statute law of the European Parliament from the Bar table and put forward the evidence of Mr Dammholz. Mr Saleh did not apply for an adjournment of the proceedings to supplement the expert evidence, and the motion proceeded. Mr Dammholz’s affidavit indicated that he was dealing with German lawyers but that he had his own experience of the operation of German probate procedure in which the parties were involved. Although the statutory material Mr Saleh tendered was not fully compliant with Evidence Act 1995, s 174, there was not a strong contest about its authenticity and the Court has admitted it.

19. Mr Katsoulas for Dr Russell submitted that the burden lay upon Mr Ceylan to prove that there were adversarial proceedings overseas that could produce a binding result between these parties and that Mr Dammholz was no more expert in German law and practice than Mr Klinger.

20. The Court indicated that it would do its best with the materials provided and rule upon the admission of the material in the final judgment. Moreover, some of the evidence of both Mr Dammholz and Mr Klinger was hearsay but each side generally adduced evidence of its source and much of it is admissible under Evidence Act s 75.

21. In the result Court has admitted the evidence adduced on foreign law on both sides and orders that the formal requirements of s 79 not apply to the evidence of Mr Klinger and Mr Dammholz. The Court considers both Mr Klinger and Mr Dammholz have practical expertise in the subject of German succession and probate law. The Court also notes the interlocutory subject matter of the proceedings and that the evidence of foreign law is important but is one of several factors to be weighed on this interlocutory application.

22. The German Proceedings – the course of the German proceedings. In June 2023 Mr Ceylan applied to a German probate court, the Local Court in Hannover for a certificate of inheritance based on the 2021 will that was executed before a notary. The Local Court in Hannover notified Mr Klinger of the application on 17 July 2023 and on 30 July 2023 Mr Klinger on behalf of Dr Russell filed an objection with the Local Court to the issue of any certificate of inheritance. The objection was grounded on the deceased’s alleged lack of testamentary capacity at the time of the 2021 will and Mr Klinger informed the Local Court that Mr Ceylan had commenced the 2022 proceedings in Australia.

23. Mr Dammholz says that he was instructed thereafter to take no further action to advance the Australian proceedings and he was not kept informed of the progress of the German proceedings.

24. Negotiations commenced between the German lawyers for the parties but did not resolve the matter. In July 2024 German lawyers acting on behalf of Dr Russell foreshadowed the commencement of Australian proceedings, if the matter was not resolved. The matter did not settle, and these proceedings were commenced. In the meantime, the German certificate of inheritance proceedings in the Local Court at Hanover were advancing through a court-initiated process.

25. Mr Dammholz indicates his belief that the Statement of Claim in the 2025 proceedings is the same as the defence being advanced in the German proceedings, both being based on claimed examples of the deceased’s mental impairment at about the time of making of the 2021 will. But Mr Dammholz says the deceased’s testamentary capacity has been investigated by the Guardianship Court in Hannover prior to the making of the 2021 will without resulting in confirmation that the deceased had the mental incapacity at the relevant time which is presently alleged.

26. The more complete evidence describing the juridical nature of the German proceedings is from Mr Klinger who has a specialist accreditation in Probate and Estate Planning. He practices in Berlin and is fully acquainted with the law of Germany in probate and succession and has been a partner in the firm WF Frank & Partners Rechtsanwaite, a law firm specialising in cross-border probate law with a focus on contentious probate matters and litigation. The Court generally prefers Mr Klinger’s evidence to that of Mr Dammholz, partly because of Mr Klinger’s practising in Germany and partly because of the detail and quality of his evidence, which shows knowledge of the procedural nuances of the German proceedings.

27. Mr Klinger says that the certificate of inheritance proceedings that Mr Ceylan has commenced are one of two major types of proceedings to prove an heir in German probate law. The first, the certificate of inheritance proceedings, is an exercise in noncontentious jurisdiction, and its procedure is governed by legislation called the “Act on proceedings in Family Matters and in Matters of Noncontentious Jurisdiction”, abbreviated to FamFG.

28. Certificate of inheritance proceedings under the FamFG are an exercise in voluntary jurisdiction which does not involve contradictory processes between competing heirs. A principle of “official investigation” applies within certificate of inheritance proceedings under the FamFG, by which the German court determines the facts of the case, the scope of the investigation and undertakes its own court-initiated investigations. Competing heirs are not “parties” in certificate of inheritance proceedings, and they do not control the proceedings or what evidence is put before the Court for consideration, as the proceedings are not adversarial.

29. The outcome of certificate of inheritance proceedings is not legally binding and not determinative of a contest between heirs. But the certificate of inheritance that results from this procedure under the FamFG is final in one limited sense: it certifies the true inheritance situation if its content is correct, but it cannot change the true inheritance situation if its content is incorrect. In other words, it appears to be a document that can be acted on unless displaced by a more formal contested judicial proceeding. It appears to act therefore somewhat like a grant of probate in common form in this and other common law jurisdictions, as distinguished from a grant in solemn form: see the explanation in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [223]. Because certificate of inheritance proceedings under the FamFG are not adversarial, the certificate of inheritance that results from it does not create a res judicata between competing heirs, who may contest the certificate of inheritance later.

30. The other form of German probate proceedings is contested civil proceedings for a binding declaration to establish the status of an heir and the heir’s right of succession. Such contested civil proceedings will create a res judicata between the parties hereto. Mr Klinger explains that neither Dr Russell nor Mr Ceylan have commenced such contested civil proceedings in Germany.

31. In contested civil proceedings Mr Klinger says that the principle of production of evidence applies. That means that parties are obliged to put the evidence they want to have considered before the Court which, in contrast to the certificate of inheritance procedure, does not undertake its own investigations. If contested civil proceedings are commenced, the probate court which has undertaken the certificate of inheritance proceedings must be informed of the dispute and as result of that notification the certificate of inheritance proceedings are put in suspension. This is because the positive declaratory action of the contested proceedings may displace the certificate of inheritance resulting from certificate of inheritance proceedings.

32. Contested civil proceedings can be brought by a person who receives an unfavourable outcome in the certificate of inheritance proceedings. If the final determination of the civil court in the contested civil proceedings is different from a prior certificate of inheritance, the incorrect certificate of inheritance is revoked, being displaced by the determination in the contested civil proceedings. The action for contested civil proceedings can be brought before the Local Court or Regional Court in the district, such as Hannover, where the deceased was last domiciled and is reviewable through an appeal process.

33. Mr Dammholz’s affidavit in reply contests some of Mr Klinger’s evidence. The Court generally prefers Mr Klinger’s affidavit evidence to Mr Dammholz’s affidavits where conflicts remain after the exchanges that have taken place between them in their successive affidavits. Some of the conflicts that remain are the following in the Court’s reasons for preferring Mr Klinger over Mr Dammholz are described below.

1. In response to Mr Klinger’s evidence drawing a distinction between certificate of inheritance proceedings and contested civil proceedings Mr Dammholz takes the somewhat polemical position that “I fail to see the relevance of this exercise for the issue currently before the NSW Supreme Court” but he does not directly contradict Mr Klinger’s account of the distinguishing features of certificate of inheritance proceedings and contested civil proceedings. Mr Dammholz says that Dr Russell has pursued his option of opposing Mr Ceylan’s certificate of inheritance proceedings. But as Mr Klinger has explained, Mr Ceylan’s lawyers have not taken up the option of escalating the German proceedings to contested civil proceedings. Mr Dammholz describes what has been done on behalf of Mr Ceylan in Germany as taking “the usual and more practical approach”. To the extent that Mr Dammholz describes a certificate of inheritance as “conclusive evidence of beneficial succession” the Court only accepts that as being true in the sense that Mr Klinger describes it: as temporarily conclusive and subject to being displaced by the outcome of contested civil proceedings.

2. In response to Mr Dammholz’s evidence that “the only German court which would have jurisdiction in this matter is the Local Court at Hannover and it is simply not conceivable that the court in Hannover would allow additional proceedings in exactly the same matter which is already before that court”, if this statement means that the certificate of inheritance proceedings in the Local Court at Hannover are effectively final, the statement is inherently improbable in a sophisticated legal system such as that of the Federal Republic of Germany which adheres to the legal norms of the European Union. The right to contest inheritance and appeal from the result must be firmly embedded in German civil procedure, and Mr Klinger plausibly explains how that works in practice in German probate and succession law.

3. Mr Dammholz says that a withdrawal by one party from advanced Local Court proceedings such as the certificate of inheritance proceedings is only possible with the consent of the other party. That may be a correct description of the procedure in certificate of inheritance proceedings in the Local Court in Germany. But that does not displace Mr Klinger’s evidence about the difference between certificate of inheritance proceedings and contested civil proceedings and the binding final nature of the latter.

4. Mr Dammholz says that he disagrees with Mr Klinger’s evidence that the “currently pending German [certificate of] inheritance proceedings are not adversarial”. Mr Dammholz points to objection being taken and substantial submissions made in the certificate of inheritance proceedings on behalf of Dr Russell and on behalf of Mr Ceylan. That may be correct, but it does not challenge the distinction that Mr Klinger draws between certificate of inheritance proceedings and contested civil proceedings.

5. Finally, Mr Dammholz refers to the European Succession Regulation (EU-Reg) and its emphasis in harmonising succession law and having all succession issues being dealt with by one Court. He therefore strongly advocates the enforcement of the lis alibi pendens principle and says that EU-Reg tries to extend the reach of this principle beyond member states of the European Union, so it has universal application to all the property forming part of an estate whether that property in the European Union or not and whether or not the principle is part of the law of the member state: No. 37 of the preamble to the EU-Reg and Art 20, EU-Reg. This can be accepted as far as it goes but this Court must apply Australian law, as the lex fori, as to lis alibi pendens, which this Court seeks to do in the analysis below.

Applicable legal principles

51. Mr Ceylan’s motion seeks the stay or dismissal of Dr Russell’s proceedings on forum non conveniens grounds under UCPR, r 11.6(2)(b) until final resolution of the German proceedings. Such motions have faced more significant hurdles since the decision of the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; 97 ALR 124 (“Voth”), which introduced the clearly inappropriate forum test.

52. The applicable test for forum non conveniens determinations formulated by the High Court of Australia in Voth was conveniently restated in Puttick v Tenon Ltd [2008] HCA 54 (“Puttick”); (2008) 238 CLR 265, as follows ([27])

“In Voth v Manildra Flour Mills Pty Ltd, the Court held that a defendant will ordinarily be entitled to a permanent stay of proceedings instituted against it and regularly served upon it within the jurisdiction, if the defendant persuades the local court that, having regard to the circumstances of the particular case, and the availability of an alternative foreign forum to whose jurisdiction the defendant is amenable, the local court is a clearly inappropriate forum for determination of the dispute. The reasons of the plurality in Voth pointed out [at p 565] that the focus must be “upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum”.

53. As the High Court further explained in Puttick (at [43]), the test stated in Voth turns on the following matters:

First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised 'with great care' or 'extreme caution'.

54. It is regarded as prima facie vexatious and oppressive, in the Voth sense, to commence a second action in Australian Courts, if an action is already pending with respect to the matter in issue in the Courts of another country: Henry v Henry (1995) 185 CLR 571, at 591-593, as it is undesirable for two courts to determine the same dispute. Faced with such circumstances in a divorce case in Henry v Henry, the High Court identified some of the factors to be considered in a forum non conveniens stay application, where two actions have been commenced in the following passages (references omitted):

“It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.

It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.

…

Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved.”

55. Even if the issues in the foreign and local litigation are not identical but the different proceedings arise out of the same substratum of fact, the question for decision is “not whether the Australian Court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings”. Rather the question is: whether having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging”: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 400 (“CSR”).

56. The Voth test requires analysis of (1) the “connecting factors” between the litigation and the two forums, and (2) whether a decision to stay or not to stay will deprive a party of any “legitimate personal or juridical advantage”. These principles applied in applications for a stay on inappropriate forum grounds are more fully stated by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-248. And in the application of those principles the High Court explained in Voth (at 564 – 565) that Lord Goff’s discussion in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (“Spiliada”) at 477-478, 482-484 of relevant “connecting factors” and any “legitimate personal or juridical advantage” provides valuable assistance.

55. The relevant “connecting factors” referred to in Spiliada include: matters affecting convenience or expense (such as the availability of witnesses); the law governing the relevant transaction; and the places where the parties respectively reside or carry on business. Examples given in Spiliada of legitimate personal or juridical advantages are matters such as the awarding of damages on a higher scale, a more complete discovery procedure, a power to award interest, or a more generous limitation period.

56. The applicability of a foreign law is often considered to be a significant connecting factor in determining whether an Australian state is a clearly inappropriate forum; for example, the difficulties and uncertainties involved in the proof of foreign law can be a source of prejudice: Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 (“Murakami”) at [63] and [150]-[151]. But the significance of this as a connecting factor means that it is necessary to address the choice of law issues on a forum non conveniens stay application. But as Spigelman CJ explained in Murakami it is not necessary on such a stay application to finally resolve the choice of law issues. Nor is it wise to do so, when the full legal issues to be determined are not as yet defined by pleadings: Murakami at [65]. But the strength of the respective submissions on that issue is nevertheless relevant to the application of the Voth test: Murakami at [64].

57. The learned authors of M Davies, A Bell, P L G Brereton and M Douglas, Nygh’s Conflict of Laws in Australia, LexisNexis Butterworths Australia 2020 (“Nygh”) at [8.19] provide a convenient attempt to put the various elements of the false test together, drawing upon drawing upon Oceanic Sun and Spiliada as follows (omitting references):

“(1)   The plaintiff prima facie has the right to have the chosen forum exercise the jurisdiction regularly invoked by the plaintiff either through service of the defendant within the forum or outside, unless the forum is satisfied that it is clearly inappropriate. But not too much weight should be placed on this right. It may well be significant where there is a ‘finely balanced contest’. In other cases it may have little bearing on the matter.

(2)   The onus of establishing that satisfaction lies upon the party (normally the defendant) who seeks a stay or the setting aside of service on that ground, except where the plaintiff was required to obtain prior leave to serve the defendant outside the jurisdiction.

(3)   The following factors are relevant in considering whether the forum is clearly inappropriate. None is conclusive by itself:

(a)   Any significant connection between the forum selected and the subject matter of the action and/or the parties, such as the domiciles of the parties, their places of business and the place where the relevant transaction occurred or the subject matter of the suit is situated, and other factors affecting convenience or expense, such as the availability of witnesses.

(b)   Any legitimate and substantial juridical advantage to the plaintiff, such as greater recovery, more favourable limitation period, better ancillary procedures, or assets within the jurisdiction against which any judgment can be enforced.

(c)   Whether the law of the forum will supply the substantive law to be applied in the resolution of the subject case or whether the matter is governed by foreign law.”

60. The Court must now apply the Voth test to the circumstances presented on the motion in this case, to determine whether the Court is satisfied that New South Wales is a clearly inappropriate forum for the trial of the proceedings.

61. What substantive law applies to the issues that will be determined in the final hearing of the proceedings is often considered to be significant when considering Voth connecting factors on a forum non conveniens application. The deceased’s estate consists of immovables and movables in this jurisdiction and movables in Germany.

62. At common law the proper law regulating the disposition of immovable property by will is the law where the property is situated, the lex situs, and not the law of the testator’s domicile, the lex domicilii; in contrast the disposition of movable property is determined by the lex domicilii of the testator: Freke v Lord Carberry (1873) 16 LR 6 Eq 461, Re Hernando, Hernando v Sawtell (1884) 27 ChD 284, In re Moses [1908] 2 Ch 235, Re Piercy: Whitwham v Piercy [1895] 1 Ch 83, at 89-90, and Phillipson – Stow v The Inland Revenue Commissioners (1961) AC 727 at 761 – 762 per Lord Denning.

63. This rule at common law covers all issues bearing upon the operation of the will as a disposition of land. It covers the capacity of the deceased to make the will disposing the immovable property, the formal validity of such a will, and the essential validity or effectiveness of the testamentary disposition: Nygh’s Conflict of Law in Australia 10th ed, Lexis Nexis at [38.10], [38.12] and [38.29].

64. This principle has been applied repeatedly throughout common law world, not by any special rule of the common law but by the deference that common law pays to other civil legal systems that draw upon the difference between movables and immovables: Freke v Lord Carberry (1873) 16 LR 6 Eq 461, at 466 per Lord Selborne.

65. The principle has long been affirmed in Australia. In Lewis v Balshaw (1935) 54 CLR 188 the High Court considered the rule in respect of a testator who was domiciled in England, and upon his death possessed movable and immovable property in New South Wales. The executor named in the will obtained a grant of probate in common form in England and as a person entitled to probate who was out of the jurisdiction, brought a suit in this Court in New South Wales for the grant to his attorney of administration with the will annexed. The suit was contested because a caveator claimed that the will was invalid. The Court pointed out that a general grant of probate means that the movables and immovables invest in the executor and must be administered according to the disposition in the will. But the Court said (at 195):

“Yet no forum but the forum situs and no law but the lex situs can govern the title to land. Considerations of convenience and of comity could not and have not overcome this rule.

In our opinion the validity of the will as a disposition of immovables and as a title to administer them must be determined independently of the English grant. It follows that the caveat it was objections to the grant of probate should be heard and determined upon the merits.”

66. The Court adverted (at 195) to the fact that if the New South Wales Supreme Court found the will invalid, proceedings may have to be taken in England to revoke the probate and if all attempts to obtain consistency between the UK grant and the New South Wales grant failed, it might be possible to resolve them by granting administration with the English will annexed with respect to the movables and have them administered separately from the immovables. Lewis v Balshaw has been applied in the Court of Appeal in this State in In the Application of White (1975) 2 NSWLR 125 and often at first instance since then in this State: see for example Zeferos v Panagos (Supreme Court (NSW), Waddell J, 4 December 1985, unrep).

67. But the rule that the lex situs is the proper law regulating disposition of immovable property is subject to qualifications. If an issue arises as to the interpretation of the will, that issue will normally fall to be construed according to the lex domicilii at the time when the testator made his will, on the basis that to see what a testator intended, one may legitimately look at the law that the testator then had in mind: Phillipson – Stow v The Inland Revenue Commissioners (1961) AC 727 at 761 – 762 per Lord Denning. But this in turn is subject to a further qualification: that the construction must not conflict with the lex situs, which therefore still controls the outcome: see Noel Mockett Brown as executor of the estate of the late Petar Vezmar (aka Peter Vezmar) [2015] NSWSC 1470, per Brereton J (as his Honour then was).

68. These common law rules have been modified in Australia only with respect to the formal validity of the will, by legislation adopting the Hague Convention on the Conflict of Laws Relating to the Form of Testamentary Dispositions 1961(“The Hague Convention”) in all Australian jurisdictions. The adoption of the Hague Convention in New South Wales is reflected in Succession Act ss 47 – 50. The Hague Convention alters the common law choice of law rule concerning the formal validity of a will abolishing the distinction between movables and immovables with a simpler regime which allows the will to be treated as formally valid provided its execution conforms with the internal law of any one of several places with a connection to the testator at the time the will was executed, or at the time of the testator’s death. These places are the place of execution of the will, the place of habitual residence of the testator, or the country of nationality of the testator: cf Re Appln of NSW Trustee & Guardian [2019] NSWSC 156.

69. But beyond the issue of formal validity of the will, the Hague Convention does not affect the more general rule that succession to immovable property is determined by the lex situs. So, issues of capacity, essential validity and construction may still have to be determined in accordance with, or to ensure consistency with, the lex situs.

70. But questions of capacity are often questions of fact and evidence, not questions of law and may be decided by the without reference to any specific legal system, or by the lex fori: Nygh at [38.8] and Re Estate of Fuld (No. 3) [1968] P 675, at 696.

71. This case will probably raise additional issues relating to the possible revocation of the 2013 will made by the testator in Victoria by the later wills made in Germany. By the application of the Hague Convention the question of the formal validity of the wills made in Germany will be decided, by German law. Issues of construction of the revocation clauses in the German wills, an issue which has been highlighted above as potentially relevant in this case, will be governed so far as the Newport property is concerned by New South Wales law. But whether the revocation clauses of the German wills were intended to affect the 2013 will at all, raises other questions which may have to be determined by the lex fori. What evidence will ultimately be adduced at trial is presently unclear, but things said by the deceased either to Dr Russell or Mr Ceylan at about the time he made the German wills may be admissible to assist in determining whether the 2018 well or the 2021 will revoked the 2013 will.

72. Tadgell J had to consider just such a question in Re Barker [1995] 2 VR 439. The question in Re Barker was whether a German will was sufficient in its terms to revoke a Victorian will, a matter governed by the domicile of the testator in Germany. But the further question of whether the German will was ever intended to effect the Victorian will, because of statements made by the testator before and after he made the German will, were admissible to determine whether probate of the Victorian will should be granted. Tadgell J determined that the testator’s intention was that the German will should govern her assets in Germany and that her Victorian will should continue concurrently to govern her assets in Victoria, so he granted probate of the Victorian will. Other cases look to evidence, admitted under the lex fori, of surrounding circumstances to infer the testator’s intention as to whether foreign wills were to operate concurrently with the Australian wills: cf Re Ulvstig [2000] QSC 66, and In the Estate of Hughes – Roberts Deceased [2018] SASC 133.

73. The parties have not adduced sufficient evidence on this application for the Court to know the extent of any such evidence. But it is reasonably likely from the form of both the 2013 will and the 2018 will each giving primacy to Dr Russell, that the deceased was in contact with Dr Russell. It can therefore reasonably be anticipated that this kind of contest about the concurrent operation of the 2013 and the German wills may arise. This is likely to draw in some, albeit limited, evidentiary contest at the trial about what the deceased may have said to Dr Russell and what the deceased may have said to Mr Ceylan about his testamentary intentions when executing his German wills.

Consideration

74. In the Court's view, Dr Russell's continuation of these proceedings in Australia is not oppressive in the Voth sense and they should not either be dismissed or stayed. The Court commences this section with its own analysis that leads to this conclusion followed by some response to the additional unsuccessful submissions put on behalf of Mr Ceylan which have not already been dealt with above.

75. Firstly, Voth counsels caution in dismissing or staying proceedings, where Dr Russell has regularly invoked this forum to determine this dispute. And Mr Ceylan bears the onus of satisfying the court that this is a clearly inappropriate forum.

76. Initial focus is appropriate on Dr Russell's conduct in both jurisdictions. Dr Russell was initially a caveator here in the 2022 proceedings and became an objector in the certificate of inheritance proceedings. He has not initiated proceedings in Germany and then initiated the 2025 proceedings here. The correct sequential analysis of Dr Russell's conduct is that when two sets of non-binding proceedings were commenced against him, one in Australia and then another in Germany, he had an option as to how to produce a binding result that would put an end to future proceedings between these parties. He could have taken civil court contested proceedings in Germany or commenced the 2025 proceedings. He chose the latter course. This is not obviously oppressive. He needed to do one or the other to bring finality to the succession contest between himself and Mr Ceylan. This is not a case of Dr Russell attempting to maintain proceedings in two jurisdictions.

77. Focus on Mr Ceylan produces similar result. It is not obviously oppressive for Dr Russell to continue the 2025 proceedings in New South Wales in circumstances where he and Mr Ceylan are in contest with one another concerning this estate and where Mr Ceylan has not already himself taken the option of pursuing contested civil proceedings in Germany, which will produce finality to their contest. Instead, Mr Ceylan has declined to take the initiative in Germany to create a res judicata and bring finality to this contest. Given Dr Russell's opposition in Germany, it is somewhat difficult to understand why Mr Ceylan has not escalated the proceedings in Germany in the two years since July 2023. One plausible explanation may perhaps be that there appears only be €100,000 of the estate in Germany and the economic viability of him initiating such a contested proceeding in Germany may be doubtful.

78. Focus on the nature of these proceedings and their likely course in the event probate is granted produces a similar result. This is the first proceeding in either jurisdiction which is likely bring finality to this contest over the deceased's estate. At a practical level if this Court dismisses or stays these proceedings, they are very likely to return here in a contested form in another form in a year or two. After success on this motion, Mr Ceylan would probably continue the German certificate of inheritance proceedings, and he may perhaps obtain a certificate of inheritance in his favour. Mr Ceylan would attempt to use that certificate to ground a revival of the 2022 proceedings to obtain probate in this jurisdiction to deal with the Newport property. Dr Russell will then seek to defend that action on the basis that certificate was not final. As the applicant for probate (rather like an applicant for the recognition and enforcement of a foreign judgment) Mr Ceylan would then bear practical burden of establishing that the certificate of inheritance was final and conclusive: Schnabel v Yung Lui and Louis [2002] NSWSC 15 at [76] per Bergin J and Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1967] 1 AC 853, at 927 and 970. That is not an onus that he has discharged so far in these proceedings against the evidence of Mr Klinger. The present contest would then revive through Dr Russell either filing a cross-claim in the 2022 proceedings or commencing civil contested proceedings in Germany. Either way imposing a stay or dismissal will probably lead to another later round of litigation in Australia or in Germany, unless Mr Ceylan initiates contested civil proceedings in Germany.

79. Mr Ceylan emphasises the balance of practical convenience that he says will arise by staying these proceedings, so that the proceedings can continue in Germany. On both sides this aspect of the motion has been approached without calling specific evidence about how the case will be conducted at a final hearing but relying upon what would be expected to occur. So, the Court will approach it here on the same basis.

80. A stay of these proceedings will effectively force Dr Russell to commence contested civil proceedings in Germany. Mr Ceylan is correct that most of the medical witnesses, official witnesses and witnesses with day-to-day contact with the deceased at about the time of the 2021 will, who could give evidence about the deceased's cognitive capacity in 2021 would be based in Germany. A trial in Germany would be more convenient to those witnesses. But Voth and Henry v Henry make clear that mere balance of convenience is not the issue.

81. But the balance of convenience is not as one-sided as Mr Ceylan’s submissions suggest. It is reasonably foreseeable that contested German proceedings would involve the following kinds of evidence from Australia:

1. Dr Russell is likely to call evidence about the alleged irrationality of the 2021 will and its departure from the prior will-making habits of the deceased, leaving nothing to Dr Russell. At a final hearing it is likely to be contended on behalf of Dr Russell that his complete omission from the 2021 will is evidence of impairment of the deceased’s short and long-term memory. Much of the relevant evidence on that subject is likely to come from Dr Russell and perhaps from others in Australia about the deceased’s marriage in Australia to Dr Russell’s sister and the deceased’s life in Australia.

2. As was mentioned earlier in these reasons, there is likely to be a contest about the scope of the revocation clause in the 2021 will. Such a contest may include conversations or other communications that had taken place between the deceased and Dr Russell over time about the deceased’s testamentary intentions, for example to deal only with his German property, at the time of executing the 2018 will or the 2021 will.

3. Unless there is little practical difference between the two, Dr Russell will need to call expert evidence about Australian law in relation to succession to the Newport property. The legal principles discussed above indicates that this may be relevant to a variety of issues such as, the construction of the 2021 will and its revocation clause, which will be decided not inconsistently with Australian law.

82. In contrast, if the 2025 proceedings were to proceed, many of the German witnesses could give evidence by video link in the modern era. And the German professional medical witnesses may give evidence that way even within Germany.

83. The value in this estate is almost wholly based in New South Wales. Probably because of that economic centre of gravity in this State, Mr Ceylan made the understandable choice to commence the 2022 proceedings here first. But having done so, it is less credible for him to argue that New South Wales is a clearly inappropriate forum. The Australian assets are A$1.42 million and the German assets of €100,000 worth about AU$177,000. The German assets of the estate are approximately 11% of the total. Some weight should be given to the jurisdiction with the bulk of the estate. For example, it may become necessary to draw upon estate funds during contested litigation. That will be easier if the litigation is in New South Wales.

82. A German court is the best place to apply German succession law in relation to the deceased’s movable estate. Expert evidence of Australian law would have to be given in Germany, as Australian law will always apply to determine the disposition of the Newport property, wherever this case is determined, as discussed above. This carries its own additional burden to Dr Russell in the costs of German proceedings. And there is convenience to an Australian Court in applying Australian law. Of course, the converse applies, and expert evidence will have to be given relation to German law of movables here in Australia if these proceedings are not stayed. But the balance of inconvenience on this issue does not show New South Wales to be a clearly inappropriate forum.

83. Mr Ceylan contends that the 2025 proceedings have only just commenced whereas the German proceedings are well advanced. But that is only true of the certificate of inheritance proceedings. A more apt analysis is that the 2022 proceedings and the certificate of inheritance proceedings have each progressed some distance and the progression of both have been slowed by Dr Russell’s objections to the pursuit of Mr Ceylan’s claim, but New South Wales is the only jurisdiction where a party has moved for final binding determination of this dispute.

84. The other commonly relevant factors in such contests received little focus in the contest between the parties. Neither side cited specific other juridical, procedural, or language factors as being weighty considerations.

85. This analysis deals with most of the issues raised on behalf of Mr Ceylan. Mr Saleh’s reliance on European lis alibi pendens principles is useful as far as it goes but is subject to Voth in this jurisdiction, which the Court has applied. Mr Saleh submits that the 2021 will and the 2018 will are governed by German law but that is not correct. Mr Saleh submits that terminating these proceedings will have no adverse effect on either party given the German proceedings are on foot, but these reasons show that is an oversimplification. His submissions also focus on the fact that there are simultaneous proceedings been conducted in two jurisdictions but that too is an oversimplification: at present there is no prospect of inconsistent verdicts between the Australian and German proceedings because the current German certificate of inheritance proceedings will not produce a res judicata.

86. The Statement of Claim will not be dismissed or stayed. There is no advantage in a stay unless Mr Ceylan were to undertake to commence contested civil proceedings in Germany. Instead, he has taken the position that such proceedings are not necessary. Mr Ceylan 's motion will be dismissed. Mr Ceylan will need to decide whether to appear and contest the proceedings in this jurisdiction. The matter will be referred to the Registrar to manage the further procedural steps in the matter.

Costs

89. The Court has full discretion to award costs under Civil Procedure Act 2005, s 98(1). Dr Russell has successfully defended Mr Ceylan’s interlocutory motion and would be able to claim an order for costs. But the costs issues in play here are somewhat like those that present when interlocutory injunctive relief is sought. Whether Mr Ceylan should pay the costs of this motion depends in part upon the outcome of the proceedings at final hearing. But there is also an arguable case for Dr Russell to have an indemnity for his costs of this motion from the estate payable from the available funds held by the estate in this jurisdiction on the basis that the resolution of this issue has been necessary to advance the administration of the estate.

90. The Court will hear from the parties on costs, but two inter partes orders dealing with costs present themselves for possible consideration: making an order that the costs of the motion be the plaintiff’s costs in the proceedings or making no order as to costs. If the parties cannot agree upon a suitable costs outcome with this guidance, then they should provide a timetable to the Court in which they provide costs submissions of no more than three pages each before 17 October 2025.

91. This is not a large estate, and costs should be kept proportionate. Should there be a contest about costs therefore the Court will make a maximum cost order under UCPR r 42.4 in respect of all argument about costs to limit each party’s ultimate recovery of costs for argument about costs issues to no more than $3,000.

Orders

92. The Court:

1. DISMISSES the defendant’s Notice of Motion filed 30 April 2025.

2. DIRECTS the parties to agree to suitable costs orders to give effect to these reasons, and if no agreement can be reached, then ORDERS that each party shall file submissions of no more than three pages concerning the costs of the defendant’s motion, by 17 October 2025 with a view to supplementary orders in relation to the costs of the motion being made in Chambers.

3. NOTES that the Court wishes to limit the amount of costs which are to be expended in arguing about costs in these proceedings and therefore ORDERS pursuant to Uniform Civil Procedure Rules 2005, r 42.4 that neither party may recover from the other in relation to costs arguments in these proceedings more than the specified amount of $3,000.

4. LISTS the proceedings before the Registrar in Probate on 7 October 2025 for further directions.

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Amendments

12 September 2025 - Amendment of [92] amending the next listing date from 8 October to 7 October.

Decision last updated: 12 September 2025