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[2025] NSWSC 473
Supreme Court of NSW
2025-05-15
Slattery J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Abraham v Goldberg [2025] NSWSC 473
Hearing dates: In Chambers
Date of orders: 15 May 2025
Decision date: 15 May 2025
Jurisdiction: Equity – Probate and Family Provision List – Probate
Before: Slattery J
Decision: Motion for dismissal stood over with liberty to relist pending the plaintiff’s compliance with future court orders. Costs reserved.
Catchwords: SUCCESSION — Probate and administration – plaintiff seeks probate of the wills of a deceased couple – the defendant, the couple’s daughter has a grant of probate in common form of an earlier will of her deceased mother and seeks probate of the will of her father – the plaintiff claims to be a friend of the couple, a contention which is contested – the plaintiff in substantial default of the Court’s procedural orders in the proceedings – whether the plaintiff has raised sufficient doubt about the wills of the deceased couple that the Court should not strike out the proceedings.
CIVIL PROCEDURE – Motion for Summary Dismissal – Where plaintiff has failed to comply with directions – discretionary considerations relevant to summary dismissal for failure to prosecute probate proceedings.
Legislation Cited: Civil Procedure Act 2005
Crimes Act 1900
Probate at Administration Act 1898
Real Property Act 1900
Uniform Civil Procedure Rules 2005
Cases Cited: Batistatos v RTA of NSW (2006) 266 CLR 256
Boyce v Bunce [2015] NSWSC 1924
Creed v Smith [1914] VLR 652
Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1462
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
McGettigan v Coulter & Anor; Coulter & Anor v McGettigan [2021] NSWSC 1097
McGettigan v Coulter & Anor; Coulter & Anor v McGettigan (No. 2) [2021] NSWSC 1356
Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274
Rathman v Bimson [2010] NSWSC 338
Re the Estate of Condon; Battenburg v Phillips [2017] NSWSC 1813
Saunders v Vautier (1841) 41 ER 482
Showtime Touring Group Pty Ltd v Mosley Touring Inc (2013) 296 ALR 597; NSWCA 53
Willis v Abraham (No. 2) [2025] NSWSC 276
Category: Procedural rulings
Parties: Yael Abraham Longobardi (Plaintiff)
Annie Goldberg by her tutor NSWTAG (Defendant)
Representation: Counsel:
E Cohen (Plaintiff)
A Grant (Defendant)
Solicitors:
Dezarnaulds Legal (Plaintiff)
W K Cahill & Associates (Defendant)
File Number(s): 2022/00080874
Publication restriction: N/A
Practising law until relatively late in life, Leon Goldberg was a familiar and creative solicitor-advocate defending accused persons in Sydney’s criminal courts. His death on 27 June 2020 triggered protracted probate contest featuring a startling matrix of sub-issues. On one side of the principal contest is the plaintiff, Ms Abraham, a retired solicitor with no biological relationship to Mr Goldberg but claiming to be his friend and confidante. On the other side is Mr Goldberg’s only child, his daughter, Annie Goldberg, the defendant, who denies Ms Abraham had a close relationship with Leon.
The immediate issues before the Court are Ms Goldberg’s motion seeking to strike out the proceedings as not disclosing a cause of action and for want of prosecution and Ms Abraham’s counter application to issue subpoenas to gain medical information about the cognitive capacity of Leon Goldberg at the time he executed his last testamentary instrument in the presence of his solicitor, a will dated 20 April 2018.
The parties generally referred throughout their submissions to Leon Goldberg and his wife Carol by their first names. Without intending any disrespect to family members, the Court will for convenience adopt the same practice. The plaintiff has been referred to in this and other litigation as Ms Yael Abraham or Ms Yael Abraham Longobardi. She will be referred to in these reasons as Ms Abraham.
Ms E Cohen of counsel instructed by Dezarnaulds solicitors appeared for Ms Abraham in these proceedings. Mr A Grant of counsel instructed by W K Cahill & Associates solicitors appeared for Ms Goldberg. Due to periods of time in which Ms Abraham has been self-represented the multiple affidavits relied upon in both sides are not well organised, do not set out narrative in chronological order and are often repetitive. This has severely hampered the Court’s analysis of the issues to be determined in these proceedings, although it must be said that the more recent efforts of Mr Grant and Ms Cohen to bring coherence into the materials have considerably improved the situation for the Court.
The background to the issues to be determined requires an account of events prior to Leon’s death and of the course of these proceedings. The narrative includes reference to testamentary instruments allegedly executed by Carol and issues concerning the administration of her estate are intermingled with issues concerning Leon’s estate.
The parties have filed extensive evidence on this application on both sides. These reasons cannot cover it all. The Court needs only to decide the interlocutory issues before it and has recounted in these reasons only some of the evidence relevant to those issues. These reasons do not include all the allegations these parties have made against one another in their affidavits. It may cause injustice to the parties to have those matters aired at this stage, when they are not being tested at final hearing. In setting out the evidence taken, the Court has taken an abbreviated account of the facts to be fair to the parties with untested allegations and evidence.
Leon was born in September 1928. At the time of his death in June 2020 he was aged 91. Leon met Carol in 1981, and they married in 1982. Their daughter Annie, Ms Goldberg, was born in 1986. Carol and Leon separated a few years after Ms Goldberg was born, probably in about 1990.
Leon’s mother, Marie died in December 2006 leaving a property in Fitzwilliam Street, Vaucluse to Leon. He lived in this Vaucluse property for many years until proceedings in the guardianship division of NCAT placed him under the guardianship of the Public Guardian, when he moved into a nursing home.
In June 2013 Carol purchased a house in Ambarvale, a suburb of the city of Campbelltown, in south-western Sydney. By then she was working as a psychologist in a community-based non-profit organisation devoted to the health and well-being of women in the area. It was convenient for her to live in the Ambarvale property. There will be a contest at trial about whether Leon paid for her acquisition of the Ambarvale property.
In July 2013 Carol made a will, constructed from a will kit. It appointed Leon as her executor and gave the whole of her estate to him.
Carol died on or about 31 January 2014. The principal asset of her estate at the time of her death was the Ambarvale property with an estimated value at the date of her death of $450,000.
Ms Abraham alleges that Carol made another will in late January 2014 (the 2014 will) shortly before her death. Controversially in these proceedings, only a copy of this will is available, not the original.
The 2014 will is type written and is dated 28 January 2014. In it Carol revokes prior testamentary instruments and declares it to be her last will. She appoints Ms Abraham as her executrix and trustee and if Ms Abraham is unable to act, appoints her nephew, Mr Alex Jimenez (clause 2) as her executor. Clauses 3 and 4 of the 2014 will provide:
“3. I GIVE to my daughter Annie Goldberg of [address] the sum of $80 pw. I say I do not want my daughter to loose (sic) her sickness benefits Given certain allegations she [Ms Goldberg] makes against me I make it clear that I deny totally the false allegations she makes. I say she knows what they are. I further say my daughter is due to receive a large inheritance from her father, Leon Goldberg and has received considerable amounts of money from him.
- I GIVE the balance of my estate to my executrix to hold for life for the benefit of her daughter with a disability, CHRISTINE ALYSON FABRIVCATO, also known as ALYSON ABRAHAM and in the event of her death before me, to her surviving children.”
At the foot of the 2014 will is a handwritten signature displaying the words “Carol Goldberg” and an attestation clause recording that two persons, Barry Raymond Thom and Zoltan Even Chen Nyti attested the execution of the 2014 will in the presence of the testator and each other.
The reference in clause 3 of the 2014 will to “totally false allegations” is a reference to misconduct which Ms Abraham says that Ms Goldberg had alleged against her mother. Ms Abraham says that Annie had accused Leon and Carroll of being abusive and neglectful towards her. Ms Goldberg has not repeated any allegations of misconduct against her mother in her affidavit evidence these proceedings and Ms Abraham’s allegations in this regard are likely to be contested. Alyson (Alice) Abraham is one of the several adopted children of Ms Abraham. Ms Abraham has a family of adopted children Chantal, Madison, Shaydean, Taya, Alice, Jayden, and Seth.
How did Ms Abraham come by the 2014 will? She says that she was not involved in its preparation or execution but that it was delivered to her, by persons unknown, some months after Carol’s death.
Ms Abraham claims to be a friend of Leon and Carol. Ms Goldberg contests this. Ms Goldberg will advance at trial evidence from a close work colleague of Carol, Kim McCausland, which denies that Carol ever spoke about Ms Abraham or as a friend or about any of Ms Abraham’s children. But some evidence at trial will support Ms Abraham’s contention. Ms Abraham says that she first met Mr Goldberg when she was a young child and later again when she was practising as a solicitor in the 1980s, when he and she referred legal work to one another. Ms Abraham's case (set out in her affidavit sworn on 31 August 2022) will rely upon evidence of email correspondence between herself and Ms Goldberg which is of such a nature that if accepted as genuine, would ground an inference that Ms Abraham was well known to Ms Goldberg and that they had corresponded on many subjects of mutual family interest.
Ms Abraham also swore an affidavit on 4 November 2022 when she was self-represented in these proceedings, which deposes in some 51 pages of narrative, together with 275 pages of annexures, of an extensive relationship she claims she had with Leon and Carol and their daughter, Ms Goldberg. The Court is not presently judging the merits of this case, but the extensive detail Ms Abraham provided indicates that it is a case that would require detailed consideration at trial to evaluate its merits and persuasiveness, or otherwise.
Ms Abraham's eldest daughter, Chantal Abraham supports the same inference. She will say at any future trial that she met Carol when Carol was visiting Chantal Abraham's sister, Alice, in hospital in 2007. Chantal Abraham says that she recalls Carol visiting Ms Abraham at Ms Abraham's Vaucluse home on 28 January 2014, which was a time shortly before both the 2014 will and Carol's death. According to Chantal Abraham, it was only a brief visit and because Ms Abraham was not home and Carol did not stay. Chantal Abraham also attests that Ms Abraham discussed the contents and existence of the 2014 will with her during Leon's lifetime and after Carol's death.
“3. I GIVE the following specific bequests:
(i) to the United Israel appeal the sum of $50,000,
(ii) to the NSW Friendship Circle the sum of $50,000,
(iii) to my brother CHARLES GOLDBERG my share of [the Blue Mountains property],
(iv) to my executrix YAEL ABRAHAM the sum of $250,000.”
Clause 4(i) of the 2015 will gives 50% of the residue of the estate to be held on trust by his executrix and trustee, Ms Abraham, for Ms Goldberg. It declares that she suffers from a mental illness and that he has already given her, during her lifetime a property in Kensington (“the Kensington property”) and that Ms Goldberg is not capable of managing her own financial affairs. Despite the statement the 2015 will that Ms Goldberg is not capable of managing her own financial affairs the trust created in Clause 4 is not drafted to prevent Ms Goldberg from calling for the trust estate under the rule in Saunders v Vautier (1841) 41 ER 482.
Clause 4(ii) of the 2015 will gives the other 50% of the residue of the estate to be held on trust by Leon’s executrix and trustee, Ms Abraham, for the benefit of the many children she has fostered or cared for, excepting Madison Jane Fabricato and Christine Alyson Fabricato due to the provisions made in their favour by Carol. Ms Abraham seeks to explain Leon's exclusion of her daughter Madison from 2015 will as partly arising from his dislike of Madison due to her behaviour.
The 2015 will includes a handwritten signature spelling out “Leon Goldberg” although the typewritten representation of Leon’s name and the will’s attestation clause curiously spell his first name as “Leong”. The attesting witnesses are recorded as Joseph Saul Ezekiel, apparently a Justice of the Peace, and Zoltan Even Chen Nyti, the latter being the same person as is said to have witnessed Carol’s 2014 will.
Leon made another will on 20 April 2018. This will was made shortly before the NCAT proceedings were heard on 23 April 2018. Leon’s April 2018 will was made with the assistance of his long standing solicitor, Mr Michael Vaughan of Johnston and Vaughan, who witnessed it together with Mr Michael Vaughan’s then legal secretary, Ms Georgina Krimizis, a Justice of the Peace.
Ms Abraham says that Ms Goldberg took her father to see Mr Vaughan to make the 2018 will and that the best explanation for that was that she knew that the 2014 will existed and she suspected that because of her father’s medical and cognitive state there was a risk that the NCAT proceedings would not go well on 23 April.
Leon's will of 20 April 2018 is simple. After revoking prior wills and appointing Ms Goldberg as his executor, he gives the whole of his estate to her including his properties in Vaucluse, the Blue Mountains, Dulwich Hill and Ambarvale and his bank accounts with the St George Bank at Bondi Beach. Leon had properties in all those locations but Ambarvale.
At that stage the Ambarvale property was still in Carol’s name, as Leon had not yet taken out probate of her 2013 will. But he treated it as his own to dispose of by will at this time. The Ambarvale property was transferred into his name in October 2018 after the Public Guardian became his legal guardian following the NCAT proceedings. By the time he died his bank accounts were held with the NSW Office of the Protective Commissioner ("OPC").
NCAT made a guardianship order for Leon on 23 April 2018, appointing the Public Guardian as his guardian for a period of 12 months from that date. The Public Guardian was empowered to decide where Leon would reside, what healthcare he may receive and what services would be provided to him. At the same time NCAT made a financial management order that Leon’s estate would be subject to management under the NSW Trustee and Guardian Act 2009 and a financial manager his solicitor, Mr Vaughan was appointed to manage his estate.
These guardianship and financial management orders were based upon the findings made by NCAT based upon the evidence before it. These findings may be briefly summarised. NCAT was presented with evidence from Ms Lynda Elias, a clinical nurse specialist at the War Memorial Hospital, Dr Alex Knopman a senior clinical neuropsychologist and Dr Patricia Reyes, a geriatrician at St Vincent’s Hospital. At the time of the hearing Mr Goldberg was 89 and living alone in his own home, the Vaucluse property.
NCAT accepted the evidence of these specialists and drew the following conclusions about Leon from that evidence:
Mr Goldberg’s house in Vaucluse was in a derelict state, with extensive evidence of hoarding, so much so that the property had become the subject of Land and Environment Court proceedings, initiated at the prompting of neighbours who wanted the property cleared of squalor,
at the time of the hearing there was no electricity, gas or telephone connection to the property because Mr Goldberg had not paid the utility accounts and it was dark, dangerous and foul-smelling, and contained rotting food,
at the time of the hearing Leon had lent a large sum of money to a friend and as result he was suffering financial hardship and unable to pay for his own food, medication or utility bills and he looked frail and underweight and was potentially exposed to serious health risks if he continued to live in his Vaucluse home,
welfare checks on Leon had taken place since early 2017 following police intervention at the behest of neighbours,
Leon owned several valuable properties in Sydney and was assessed by the expert as vulnerable to financial exploitation,
the expert evidence supported the Tribunal’s conclusion that Leon had "significant cognitive impairment in the areas of reasoning, mental flexibility, and planning" – and this was, notwithstanding the assessment of Mr Goldberg’s general practitioner, Prof Kremer that his hoarding and squalor, although chronic, did not impact upon his ability to work or manage independently at home,
Leon participated fully in the NCAT hearing and disagreed that he lacked capacity, but NCAT assessed his capacity in the following terms
“[26] Mr Goldberg’s presentation at the hearing was consistent with the reports submitted to support the application outlined above. His responses were frequently vague and tangential. Mr Goldberg focused on peripheral factual errors he had identified in the reports and the claimed recent improvements in his living arrangements, rather than the substance of the assessments all the observations made.
[27] The Tribunal has had regard to Mr Goldberg’s views but has placed more weight on the evidence presented by the medical and allied health staff as it considers that evidence to be independent and more reliable. Dr Reyes, Dr Knopman and Ms Elias are suitably qualified to make assessments and observations about to Goldberg’s capacity and functioning. While the Tribunal accepts there are some factual errors in the reports, the Tribunal regards these as minor and immaterial to the assessments made regarding Mr Goldberg’s cognition and functioning.
[28] The Tribunal is satisfied that Mr Goldberg has a disability which prevents him making important life decisions. He is a person for whom the Tribunal could make a guardianship order.”
Ms Goldberg appeared at the NCAT hearing and supported her father’s opposition to the making of a guardianship order. Ms Goldberg indicated that she had no major concerns about her father’s welfare or safety and described her father as “an eccentric” but someone with “a sharp mind”.
Following NCAT’s decision Leon moved to a nursing home in Vaucluse in May 2018 where he resided until his death.
On 9 October 2018 probate of Carol’s 9 July 2013 will was granted in common form to Leon. The same day the Ambarville property was transferred from Carol’s name into Leon’s name by a Real Property Act transmission application.
Leon died on 27 June 2020. His death certificate, based on information apparently provided by Ms Goldberg, indicates that he had “[d]ementia…years”. Ms Abraham says that as his 2018 will was made only a little over two years earlier there is a serious issue to be tried as to his testamentary capacity.
Ms Goldberg retained her present solicitors, W K Cahill & Associates to apply for probate of Leon’s April 2018 will. Ms Nicole Marie-Charle Fay of that firm has acted for her ever since. On 25 August 2020 Ms Fay published notice of the intention of Ms Goldberg to apply for probate of Leon’s April 2018 will in common form.
On 8 January 2021 probate was granted to Ms Goldberg of Leon’s 20 April 2018 will. She thereby became the executor of Carol’s will by representation: Probate and Administration Act 1898, s 44A. The inventory of property to the grant of probate described Leon’s real estate as including the Vaucluse property, the Ambarvale property, a one quarter interest in the Dulwich Hill property and a one quarter interest in the Blue Mountains property, together with money in current accounts comprising total net assets of a little over $12.2 million. Ms Abraham says that the estate is in fact was much more than this, more like $20 million at least, as she says the Vaucluse property was sold in May 2022 for about $17 million.
Leon had inherited his one quarter interest in the Dulwich Hill and the Blue Mountains properties from his mother. He was an executor of his mother’s estate and at the date of his death was the registered proprietor of the Dulwich Hill and the Blue Mountains properties.
After the grant of probate Ms Goldberg became the registered proprietor of all four properties. She proposed to sell them and instructed Ms Fay to commence the sale process. But this was interrupted when Ms Abraham lodged caveats under the Real Property Act 1900 on the titles of the Ambarvale and Vaucluse properties.
Ms Goldberg sought to remove the caveats. On 24 February 2022 she caused a process server to serve lapsing notices at the address in Queensland that Ms Abraham had provided on the caveats. The Court is satisfied from the statutory declarations of the process server, Ms Wendy Hastie that these lapsing notices were served at Ms Abraham’s nominated address for service. Ms Abraham did not apply to extend the caveats before they lapsed about 18 March 2022.
On 21 March 2022 Ms Abraham commenced these proceedings by Summons (proceedings 2022/80874) seeking urgent interlocutory relief before Robb J. She sought leave to lodge caveats on the titles to the Ambarvale and Vaucluse properties pursuant to Real Property Act s 74O. Her application for leave was necessary because her previous caveats had lapsed. Ms Abraham retained Queensland solicitors for this purpose, Attwood Marshall of Coolangatta. That firm also lodged caveats on the titles to the other two properties in Leon’s estate, the Dulwich Hill and Blue Mountains properties.
Ms Goldberg says that she is bringing these proceedings for altruistic reasons. She says she brings them for the benefit of the beneficiaries of the 2014 and 2015 wills, once she became aware that she had been made the executor of the wills together with her own observations of Leon in his last few years. She says that a trigger commencing the proceedings was finding out about the NCAT guardianship hearing pertaining to Leon.
Ms Goldberg’s motion of 9 February 2024 seeks the dismissal of Ms Abraham’s March 2022 summons and a grant of probate of Carol’s 2013 will in solemn form and Leon’s April 2018 will in solemn form.
Ms Goldberg argues that the proceedings should be dismissed generally under Civil Procedure Act s 61(3), for failure to comply with the Court’s directions. Mr Grant’s thorough submissions point out the breadth of the Court’s s 61(3) powers and the relationship between Civil Procedure Act s 61(3) and serving the overriding purpose in Civil Procedure Act s 56 and the elimination of delay Civil Procedure Act s 59, citing Rathman v Bimson [2010] NSWSC 338 and Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230. He submits that parties who default in compliance with the Court’s directions can, in accordance with authority, properly be left to bear the consequences of their default, including dismissal of proceedings: Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274.
Mr Grant also relies upon Uniform Civil Procedure Rules 2005 (“UCPR”), r 12.7 contending that the Summons should also be struck out for Ms Abraham’s failure to prosecute the proceedings with due dispatch. Mr Grant points out that the Court has a broad discretion under UCPR r 12.7 not fettered by rigid rules: cf Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274.
Mr Grant also relies upon UCPR r 13.4, contending that the Summons should be struck out as an abuse of process. He submits that the categories of abusive procedure are not closed: Batistatos v RTA of NSW (2006) 266 CLR 256. He submits that an abuse of process includes seeking to issue subpoenas which are no more than a “fishing expedition” to ascertain whether Ms Abraham has a case. He submits that an abuse of process is also constituted by conducting of proceedings with no intention of bringing them to a conclusion: Creed v Smith [1914] VLR 652.
To illustrate the ways that Ms Abraham’s default has been egregious, and that dismissal is warranted on all these grounds Ms Goldberg puts the following submission through Mr Grant. Ms Goldberg submits that no expert evidence has been filed for months despite Lindsay J’s orders, there have many occasions where Ms Abraham has not appeared and has not explained her non-appearance. Mr Grant submits that as well as seeking access to subpoenaed material in Court Ms Abraham now unreasonably seeks leave to issue further subpoenas, to inform a medicolegal report as to Leon’s testamentary capacity. Mr Grant submits that it is manifestly inconsistent with the proper use of the Court’s resources for there to be further delay in these proceedings whilst Ms Abraham engages on a “fishing expedition” with further subpoenas. Dismissal is also consistent with the just determination of the proceedings Mr Grant submits: the present delay is a compounding of the delay that has occurred in Ms Abraham bringing the 2014 and the 2015 wills forward and is in turn compounded by Ms Abrahams unexplained failure to appear on AVL. Mr Grant emphasises the burden that Ms Abraham bears – to show that Leon lacked capacity in April 2018 and that the 2015 will was properly executed. Mr Grant submitted that there is no injustice in this case being dismissed, partly because both the available evidence and the way they have been conducted indicates they are speculative. Mr Grant elaborated these submissions further orally and in writing.
"87 An order for security for costs is available as a means of minimising a risk of abuse of the processes of the Court attending the conduct of proceedings by a party, in substance a plaintiff, who invokes the jurisdiction of the Court without being able or willing to pay costs of a defendant if ordered to do so. The nature and magnitude of any such risk may depend upon the nature of the jurisdiction of the Court invoked in the principal proceedings.
88 The purpose of probate proceedings is generally to advance the due and proper administration of a particular deceased estate, having regard to any duly expressed testamentary intentions of the deceased, and the respective interests of parties beneficially entitled to the estate; the task of the Court is generally to carry out a testator's 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; Hookway v Hookway [2017] TASFC 4 at [9] and [69].
89 In the paradigm case (a model to which the current proceedings conform despite the plaintiff's alternative case based upon an allegation of a declaration of trust), an essential feature of probate proceedings is that they concern the management of property in a court-supervised process designed to effect an orderly transfer of property from a deceased person (whose formally expressed intentions, if any, are paramount) to one or more beneficiaries in circumstances in which: (a) the deceased person is, by definition, absent; and (b) one or more beneficiaries may also be absent or under a legal disability.
90 Because the subject matter of the proceedings is succession to property from a deceased estate, a special public interest element attends the proceedings. By nature, property rights generally, notionally operate "against the whole world", not merely as between a transferor and transferee. Where, as in a probate case, the transferor is incapacitated by death and interested persons are dependent upon findings of the Court in identification and enforcement of his or her intentions, the public has a particular interest (beyond the interests of parties in ordinary adversarial proceedings) in the integrity of the Court's processes.
"[4] It is well established that the principles applicable to the awarding of costs in probate litigation differ from those applicable to ordinary civil suits where the principle that costs follow the event usually means that the losing party pays the winning party's costs.
[5] The reason for the difference is that in a probate suit the Court is concerned to give effect to the last will of a free and capable testator or testatrix. There is a public interest in keeping faith with the wishes of a capable will-maker that requires an investigation into the validity of the propounded wills. A grant of probate in solemn form operates in rem, that is, it binds the world, or at least those affected persons who have notice of the proceedings. Irrespective of what the parties might want, the Court will not pronounce against a will unless there is material to satisfy it that the deceased did not have capacity, or that there is some other reason why the will is invalid. A grant is not made or withheld solely by the consent of the parties. There is, therefore, a public interest in the incurring of some level of costs in cases where there is genuine doubt about the validity of a will."
Lindsay J also emphasised in Condon at [92] that in an uncertain and imperfect world the law endeavours to accommodate both respect for deceased persons testamentary intentions and insistent claims on a deceased estate by the living. This is achieved in part by probate proceedings, though often adversarial, retaining their inquisitorial character to ensure that the public interest as well as private interests can be served: Boyce v Bunce [2015] NSWSC 1924 at [60]. This is achieved so far as practicable by conducting proceedings in a transparent way: Condon at [92].
In the Court's view these proceedings should not be dismissed. Although Mr Grant's arguments have considerable merit, given the way the proceedings have been conducted to date the court has found persuasive several considerations that weigh against dismissal.
First, quite apart from the expert capacity evidence which Ms Abraham as not adduced, she has adduced (by way of demonstrating what could be advanced to the final hearing) sufficient evidence to throw doubt upon Leon's testamentary capacity at the time of the April 2018 will. The proximity of the making of that will to the findings in NCAT about Leon's physical and cognitive situation reinforce that doubt. And the several witnesses which Ms Abraham has advanced, do not indicate Ms Abraham's case is merely speculative and some kind of fishing expedition concerning either the 2014 will or the 2015 will. There are substantial questions of fact to be tried which should ordinarily be allowed to go to final hearing for their final resolution. At such a final hearing the contest about the execution of the wills will involve examination of the competing expert handwriting evidence and the evidence of the attesting witnesses. A vast range of possible factual findings may emerge from the contest about the various alleged suspicious circumstances.
Secondly, although the Court has not accepted Ms Abraham's explanations for her failure to appear in these proceedings in the past, and her persistent defaults in compliance with the Court's orders those matters are outweighed by another consideration. Ms Abraham has placed her confidence in new legal representatives who are indeed presenting her case to its best advantage, Ms Cohen and Dezarnaulds. Whilst that representation continues the Court has confidence in Ms Abraham's commitment to this litigation.
Thirdly, the persistent, challenged and potentially very doubtful assertion that Ms Abrahams has made that her impecuniosity is the reason for her inability to retain solicitors and advance this case can be tested. She has put in issue her impecuniosity. The Court will therefore test this assertion because she has raised it. The Court will order that she file affidavit as to her financial position within 14 days. If indeed she lacks funds, some latitude should probably be given to her. If she does not lack funds, her commitment to diligently pursuing this litigation could be tested by now requiring her to pay forthwith the costs orders made by Hallen J on 27 January 2023 and Lindsay J on 29 September 2023: under UCPR, r 47.2; see (2013) 296 ALR 597; NSWCA 53 at [23] per Bathurst CJ, McColl JA at [33] and Bergin CJ in Eq at [34] agreeing. It is appropriate for her to show some such commitment as a condition of allowing these proceedings to go on and to deter her from repetition of the unacceptably chaotic conduct of the proceedings which has occurred in the past.
Pending the resolution of these proceedings Leon’s estate should be turned to profitable account by its legal personal representative, Ms Goldberg. There is an existing grant of probate in common form to Ms Goldberg. There is no present restriction on her administering the estate at least to the extent of realising the remaining real estate or turning that real estate to profitable account before sale. But any distribution of the estate should be halted until the outcome of these proceedings is known. Should Ms Goldberg decide upon advice that selling or letting any of the properties remaining in the estate is advisable in the near term, then she should be able to do so subject to giving reasonable notice to Ms Abraham of her intended course of action. If any dispute arises between them about such administration, then Ms Goldberg is granted liberty to apply in the orders below.
The Court will briefly hear oral submissions in relation to costs once the parties have taken the opportunity to absorb these reasons. The court has the capacity to deal with past costs orders that are presently unassessed by making them the subject of a lump sum costs order under Civil Procedure Act 2005, s 98(4)(c).
The proceedings have not been struck out. But Ms Goldberg’s motion has been adjourned and may be revived depending on Ms Abraham’s further adherence to Court timetables, directions and orders in relation to further conduct of the proceedings.
This is a very high-stakes contest. Ms Goldberg alleges that the 2014 and 2015 wills were forged. Ms Abraham says that she believes the wills are genuine and should be admitted to probate. She strongly denies she was involved in any forgery and that if it turns out the wills are forgeries then she says the forgeries must have been engineered by others. The issue is yet to be decided at trial.
But where forgery by some person is established, or strongly indicated, after a civil trial, this might lead to the referral of the proceedings to the Attorney General for consideration of a prosecution under Crimes Act 1900, s 271 which provides that “Whosoever forges, or utters, any will, testament, codicil, or testamentary instrument shall be liable to penal servitude for fourteen years.” Such referrals are made from time to time after the outcome of civil trials where forgery is alleged: cf McGettigan v Coulter & Anor; Coulter & Anor v McGettigan [2021] NSWSC 1097 and McGettigan v Coulter & Anor; Coulter & Anor v McGettigan (No. 2) [2021] NSWSC 1356 at [37] and [38 (4) and (5)]. By drawing attention to this, the Court is not indicating any view that forgery has occurred in this case but merely reminding both parties that civil litigation can be very consequential beyond its central contest.
For these reasons the Court makes the following orders and directions. The Court:
ADJOURNS the defendant's motion of 9 February 2024 with liberty to relist if the plaintiff defaults further on the Court's timetables.
RESERVES the costs of the defendant’s motion of 9 February 2024.
ORDERS the plaintiff to file a detailed and informative affidavit as to her present financial circumstances by Friday, 30 May 2024.
LISTS the proceedings on 13 June 2024 at 2 PM or at such other time as is convenient to the parties by arrangement with the chambers of Slattery J, for the parties to agree upon and present to the Court a future timetable for the proceedings and for the plaintiff to show cause
(a) as to why she should not pay forthwith the costs orders made by Hallen J on 12 December 2022 and Lindsay J on 29 September 2023, as a condition of being allowed to further prosecute these proceedings, considering her true asset position, (b) as to why she should be able to issue further subpoenas beyond the NSW Trustee and Guardians file in respect of Leon Goldberg and the New South Wales Police file in the name of Leon Goldberg, and the coroner's file in respect of the investigation of the death of Carol Goldberg, for which named subpoenas she will have leave to issue.
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Abraham
Goldberg [2025] NSWSC 473
(2006) 266 CLR 256
(2013) 296 ALR 597
Ms Abraham says Carol died by suicide. This is contested. Ms Abraham says that after Carol’s death when she informed Leon about the 2014 will coming to her attention he requested her not to obtain a grant of probate due to Carol’s tenuous mental capacity at the time it was made. It should be noted that whether Carol died by suicide and whether she was of tenuous mental capacity in late January 2014 have not been established and are not the subject of findings in this judgment. Ms Abraham’s version has Leon accepting her account of how she (Ms Abraham) came by the 2014 will. It might be expected that a lawyer as clever as Leon might have asked many questions about the provenance of the 2014 will.
Ms Abraham attempts to explain the origins of the 2014 will on the basis that Carol had met Ms Abraham's daughter, Alice, and admired what Ms Abraham was doing for her. Ms Abraham's case is that Carol only asked her to be executrix of the estate in 2014 a few days before she died. Ms Abraham says that this request came after Carol is said to have decided to recognise, in her testamentary intentions, the care that Ms Abraham had provided for Ms Goldberg.
Ms Abraham advances another explanation for the 2014 will. She says that, from about mid-2012, at Carol and Leon's request she began to help them care for Ms Goldberg who Ms Abraham says was living a disordered life. Ms Abraham also says that prior to what she says was the development of Leon's dementia in about 2017 Leon asked her to "look after Annie" because of a deterioration in Ms Goldberg's mental health.
Once again there are indications the other way. Ms McCausland says that certain physical features such as the handwriting and spelling in the 2014 will are not at all typical of Carol at that time.
Ms Abraham says that after Carol died, she could have applied for a grant of probate of Carol’s will but did not do so because of promises she had made to Leon about waiting for the best time to tell Ms Goldberg of the news of Carol's will, which was likely to be confronting for Ms Goldberg. Ms Abraham says that the time to raise this with Ms Goldberg was never resolved before Leon died. This explanation will probably be challenged on the grounds that if Ms Abraham had the good relationship with Leon that she claims that she should have been able to discuss with him the time to disclose the 2014 will to Ms Goldberg.
Ms Abraham claims that Leon made a will on 1 May 2015 (“the 2015 will”). The 2015 will is also typewritten. In it, the testator revokes prior wills and testamentary dispositions (clause 1) and appoints Ms Abraham as his executrix. Clause 3 of the 2015 will provides as follows:
Ms Abraham's account was that she had sufficient confidence from both Carol and Leon to be entrusted with the executorship of their wills. It will be strongly contested at any final hearing. Ms Goldberg foreshadows a case being made from evidence of close acquaintances and professional advisers of both Carol and Leon that Carol and Leon never talked of friendship with, or trust in, Ms Abrahams. Ms Goldberg's case will also be that Carol and Leon never spoke about having any acquaintance with the witnesses to, or the beneficiaries of, either the 2014 and 2015 wills and that Carol and Leon persistently spoke of their affection for Ms Goldberg and her priority in their lives, making her likely to be a principal if not the sole beneficiary of their testamentary intentions.
The evidence expected to be adduced at a trial from Chantal Abraham is to the contrary. It also bears upon the claimed relationship between Ms Abrahams and Leon. Chantal Abraham recalls contact between her mother and Leon at the family home and recalls her mother visiting Leon at his home. She also recalls visiting Leon, and that Leon showed her Carol's will, the 2014 will. Chantal Abraham also says that Leon even showed her his will and discussed it with her. She also claims to have visited Leon late in 2017 when Leon's house was becoming untidy and unhealthy as he aged alone.
At any future trial Ms Abraham will adduce evidence of the deterioration in Leon’s mental state commencing in 2017, well before the 2018 will was made. She says that in late 2017 Leon changed his behaviour and "began to [at] times yell, pace up and down, repeat himself, develop signs of dementia and became hostile to me and others". Ms Abraham claims that Leon’s neighbours at the Vaucluse property called her to assist in his welfare from about 2017.
Ms Abraham says that she detached herself from Leon "considerably as Jewish Care and Jewish House began to support him soon after" what she describes as "developing dementia". She said she continued to visit Leon after Mr Vaughan took over his legal affairs and he was admitted to a nursing home in Vaucluse and the Sir Moses Montefiore Jewish Home ("Montefiore") in Randwick.
On 23 March 2022 Ms Goldberg filed a Cross Summons in these proceedings seeking orders under Real Property Act s 74MA that the caveat lodged by Ms Abraham on the titles to the Dulwich Hill and Blue Mountains properties be withdrawn. The following day, 24 March 2022, Ms Abraham issued four subpoenas to St Vincent’s Hospital, the War Memorial Hospital, Montefiore nursing home, and a psychologist, Dr Alex Knopman (“the four subpoenas”). All recipients of the four subpoenas produced documents in answer to the subpoenas. But Ms Goldberg took the position, with some justification, that the subpoenas had nothing to do with the caveat applications and objected to access being granted to the materials produced in response to them. Her lawyers took the view that the subpoenas were really a “fishing expedition” in relation to the issues at final hearing.
Hallen J heard both caveat applications on 6 April 2022. Ms Goldberg succeeded in both. Hallen J declined to allow Ms Abraham to lodge further caveats on the titles to the Ambarvale and Vaucluse properties and his Honour made orders that the two caveats on the titles to the Dulwich Hill and Hazelbrook properties be withdrawn.
The proceedings were pleaded. Ms Abraham filed her Statement of Claim on 13 April 2022. Ms Goldberg filed a Defence and Cross-Claim soon afterwards and an Amended Defence and an Amended Cross-Claim on 8 August 2022. Ms Abraham’s defence to the original Cross-Claim of 20 May 2022 needed no further amendment to meet Ms Goldberg’s Amended Cross-Claim. The pleadings effectively closed three years ago on 20 May 2022.
Ms Abraham’s pleaded case seeks revocation of the grant of probate to Leon of Carol’s 2013 will and the grant of probate to Ms Goldberg of Leon’s 2018 will. Should revocation be ordered, Ms Abraham seeks grants of probate to herself in solemn form of Carol’s 2014 will and of Leon’s 2015 will.
Ms Abraham says she was not involved in the preparation either of Carol’s 2014 will or Leon’s 2015 will. But Ms Abraham has not so far adduced any evidence as to who prepared these wills. Ms Abraham herself has some legal knowledge. She is a former solicitor, but she has apparently retired from practice and is now living in Queensland after conducting a real estate agency business in the Southern Highlands of New South Wales.
Ms Abraham has at various times been asked to bring into Court the originals of Carol's 2014 will, and Leon's 2015 will. She has produced neither. She has made available what she claims are photocopies of the original of each will. As will be seen these photocopy documents were submitted to a handwriting expert, Ms Melanie Holt.
The pleadings raised the following issues. In Carol’s estate, Ms Goldberg denies that Carol’s 2014 will is a valid will. Ms Goldberg contends it is a forgery and was not duly executed by Carol, alternatively that Carol did not know or approve its contents and that it is being propounded in suspicious circumstances. Ms Goldberg says that the suspicious circumstances include the irrationality of the 2015 will which left out beneficiaries with a moral claim upon Carol and included unexpected beneficiaries together with the delay in advancing it, among other matters. It can be anticipated that any trial of these proceedings is likely to include a contest about the suspicious circumstances surrounding Carol's signature and the continuing unavailability of the original 2015 will. An odd feature of the 2014 will is that it does not dispose of the whole of the residue of Carol’s estate, perhaps indicating it was not drafted by a lawyer.
Ms Goldberg also defends Ms Abraham’s advancing of the 2014 will on the basis of laches and delay, waiver, release, inutility, and a plea of plene administravit – that Carol’s estate has been fully administered. Ms Goldberg now seeks a grant of probate of the July 2013 will in solemn form.
In Leon's estate, Ms Abraham contends Leon did not have testamentary capacity to make the 2018 will. She propounds the 2015 will. In response Ms Goldberg denies that Leon’s 2015 will is valid. She contends it is a forgery and was not executed by him. Alternatively, she contends it was not duly executed, was revoked and that Leon did not know or approve its contents and that it is being propounded in alleged suspicious circumstances. Those alleged suspicious circumstances include the alleged irrationality of the 2015 will by it leaving out expected beneficiaries, the inclusion of unexpected beneficiaries, and the delay in bringing it forward. It can further be anticipated that any trial of these proceedings is likely to include contest about suspicious circumstances surrounding Leon’s signature and the continuing unavailability of the original 2015 will.
On 27 June 2022, Hallen J ordered the proceedings go to private mediation. The mediation took place on 26 July 2022 but failed. The failure of the mediation become something of a pivot point from which time it will be seen Ms Abraham took steps which have considerably slowed the progress of these proceedings.
On 8 August 2022, Hallen J granted leave to Ms Goldberg to file and serve an Amended Defence and Amended Cross-Claim among other orders and adjourned the proceedings to 16 September 2022.
Immediately following Hallen J’s directions on 9 August 2022 Ms Abraham terminated the retainer of her solicitors, Attwood Marshall and her counsel Mr A Crossland and Ms A Djukanovic. Ms Abraham’s reasons for terminating her retainer of competent and experienced counsel and solicitors in the probate practice area, are obscure. There is no objectively verifiable evidence advanced on Ms Abraham’s behalf to support the inference that at this time she was suffering from genuine financial hardship sufficient to impair her ability to retain lawyers in these proceedings.
Ms Abraham then commenced to represent herself. Hallen J made further directions by consent in the proceedings on 16 September 2022. Because Ms Abraham resided in Queensland, Hallen J extended very considerable latitude to her as a litigant in person. His Honour gave her leave to appear in future directions hearings by AVL. But in a series of hearings on 21 October 2022, 25 November 2022 and on 2 December 2022, Ms Abraham failed to appear by AVL without any adequate explanation. As a result, Hallen J revoked his grant of leave for Ms Abraham to appear by AVL and stood the proceedings over to 12 December 2022 with directions that a letter giving notice of the orders for that adjournment be served upon her and warning her that the proceedings would be dismissed if she did not appear.
The Court does not accept there was any adequate explanation for Ms Abraham’s failure to appear by AVL from Queensland. Her failure to do so was highly disruptive to the orderly conduct of these proceedings. Her preparedness to “go dark” cannot be explained by mere communication difficulties in accessing AVL facilities. Nothing in Hallen J’s dealings with Ms Abraham displaces the inference that she was responsible for the failure to attend these several AVL hearings. Had there been genuine difficulties in accessing AVL facilities any reasonable litigant in her position with any respect for the Court would have sought to find out what the communication difficulty was and overcome it as soon as possible. But that did not happen here. After removing her own solicitors Ms Abraham allowed the matter to drift for three months until December 2022 and only after Hallen J took positive steps to communicate with her by serving letters on her. This had the predictable effect of wasting judicial resources and occasioning unnecessary costs to Ms Goldberg and is unacceptable. In the Court’s view, Ms Abraham should not be permitted to maintain these proceedings without doing something to address the costs she has occasioned to Ms Goldberg through this conduct, leaving aside the increased burden of judicial work imposed on Hallen J in trying to give her access to justice.
Even accepting in her favour that that she was in straightened financial circumstances in this period, appearing by AVL directly in response to the Court’s leave was effectively cost free for her. The Court has still not been given any acceptable reason for this conduct. The only reasonable inference available from her conduct during this period is that she is prepared not to communicate with the Court when it suits her. The danger in these proceedings is that this will happen again.
Ms Abraham appointed a new solicitor, Mr Peter Wise, on 5 December 2022, Mr M Klooster of counsel, who appeared at the directions hearing before Hallen J on 12 December 2022. Hallen J made costs orders on this occasion against Ms Abraham. Ms Waters of counsel was also retained on behalf of Ms Abraham. His Honour also made further directions.
The proceedings were mentioned before Hallen J on 24 February 2023. But Ms Abraham had not complied with the Court’s directions. An affidavit was read on her behalf indicating she had been unwell and she was given an extension. His Honour directed the parties to consider agreeing on appointing a single court expert on the alleged forgery issues by 10 March 2023, or failing agreement that Ms Goldberg seek the appointment of a forensic document examiner by motion.
Ms Goldberg proposed, and Ms Abraham agreed, to appoint as a single joint expert Ms Melanie Holt as a document examiner. But on the next adjourned date, 3 April 2023 there was again no appearance on behalf of Ms Abraham. The proceedings were adjourned to 6 April with another warning from Hallen J that if there was no appearance on behalf of Ms Abraham, his Honour would hear any application of Ms Goldberg to dismiss the proceedings.
Ms Abraham responded to warnings that the proceedings will be dismissed if she did not act. When the proceedings came before Hallen J again on 6 April 2023 Mr Klooster appeared for Ms Abraham. Repeated dismissal warnings should not be necessary to motivate parties to maintain their proceedings. The need to give such warnings is evidence of a failure to observe the objectives of Civil Procedure Act 2005 Chapter 6.
Counsel on both sides, Mr Klooster and Mr Grant, put submissions in relation to the appointment of Ms Holt as a single joint expert. Subsequent to that argument on 12 April 2023 Hallen J made orders and directions in chambers for expert evidence from Ms Holt, including that she provide her report by 14 June 2023. The proceedings were adjourned to 26 June 2023.
Ms Holt provided a report by 13 June 2023, but it included certain confidential material which she was not authorised to include in the report. When the proceedings came before the Court on 26 June 2023, directions were made for Ms Holt’s report to be returned to her for amendment to remove the confidential material and for the amended report to be provided by 4 July 2023. The proceedings were adjourned to 28 July 2023.
Ms Holt’s amended report was delivered. It concludes that there is moderately strong support for the hypothesis that someone other than Leon wrote the signature on the 2015 will and that that the 2015 will contains anomalies throughout that bring its veracity as a whole and to question.
Due to the limited number of available specimen signatures provided for Carol, Ms Holt was unable to reach a conclusion concerning the testator’s signature on the 2014 will but she observed anomalies throughout the 2014 will, which brought its veracity into question.
Ms Abraham says that the attesting witnesses for both Carol’s 2014 will and Leon’s 2015 will are available as counterweights to Ms Holt’s expert evidence. But on Ms Goldberg’s side there is evidence that the signatures on these wills are not consistent with the regular signatures of Carol and Leon.
After Hallen J’s retirement the matter came before Lindsay J on 28 July 2023 for further directions. Mr A Strik of counsel appeared for Ms Abraham. The question of what evidence should be adduced about Leon’s testamentary capacity was raised on that occasion. Lindsay J made orders that “subject to further order, that the parties be granted leave to adduce expert evidence on the testamentary capacity question” (order 8). Ms Abraham was ordered to file and serve any expert evidence upon which she proposed to rely by no later than 25 August 2023 (order 9) and the defendant, Ms Goldberg was ordered to find any expert evidence in reply by 22 September 2023 (order 10) and the proceedings were adjourned to 29 September 2023.
Ms Abraham did not adduce expert evidence by 25 August, or by 29 September 2023. Ms Abraham’s solicitor, Mr Wise did not communicate with Ms Fay between 28 July 2023 and 29 September 2023 to foreshadow or explain the default.
At the directions hearing on 29 September 2023, new counsel appeared for Ms Abraham, Mr A Connolly. He sought orders from Lindsay J on behalf of Ms Abraham that she be permitted to file and serve subpoenas returnable within 14 days (subject to notifying Ms Goldberg’s legal representatives of the subpoenas being issued). Counsel for Ms Abraham proposed that the parties then have access to material produced on subpoena and that Ms Abraham could then file any expert evidence upon which she intended to rely by 10 November 2023 (six weeks after access to the subpoenaed documents).
Ms Goldberg opposed the making of such orders. Lindsay J declined to make the orders requested. Instead on 29 September 2023 Lindsay J: noted that documents had been produced in answer to the four subpoenas; declined access to the documents produced without further order of the judge; refused the application to serve additional subpoenas; extended time for Ms Abraham to file her expert evidence on testamentary capacity to 13 October 2023; ordered Ms Abraham file and serve submissions by 17 November 2023 in support of any application for access to the subpoenaed documents from the four subpoenas and for further subpoenas to be issued; the proceedings were adjourned to 1 September 2023 in the probate list; and Ms Abraham was ordered to pay Ms Goldberg’s costs of that day, 29 September 2023 and all reserved costs. This was further indication that Lindsay J regarded Ms Abraham’s mounting defaults as requiring recognition in suitable costs orders.
Ms Abraham did not file expert evidence by 13 October 2023 or indeed at any time before the next directions hearing six weeks later, on 1 December 2023. Moreover, no written submissions as directed by Lindsay J were received from Ms Abraham explaining why she needed access to the subpoenaed documents.
On 1 December 2023 Ms Abraham did not appear at the directions hearing either in person or by counsel. She gave no explanation at the time for failing to appear. Despite all that had happened Lindsay J granted Ms Abraham a further indulgence and extended time for her to file expert evidence to 22 December 2023. But Lindsay J because of the multiple defaults in filing expert evidence Lindsay J ordered that Ms Abraham be required to obtain the leave of the Court before filing expert evidence after 22 December 2023. The proceedings were then adjourned to 2 February 2024.
The proceedings came before me on 2 February 2024. On that occasion Mr Klooster of counsel appeared as a matter of courtesy to indicate that both Mr Wise and he were ceasing to act in the matter. Mr Klooster then withdrew. There was no appearance for Ms Abraham. She was no doubt aware of the proceedings. The proceedings were adjourned. Ms Goldberg then filed her motion on 9 February 2024 for dismissal of the proceedings supported by an affidavit of Ms Fay.
In response to Ms Fay’s affidavit setting out a history these proceedings up to February 2024, Ms Abraham sought to explain in an affidavit she swore on 5 March 2024 that she had “only learned [Mr Peter Wise] was unable to continue to represent [her] towards the middle of February 2024. She explained that due to her experiencing financial hardship by circumstances beyond her control she could not afford legal representation and had to appear for herself. But she did not advance objectively verifiable evidence that she could not at this time afford to retain lawyers in these proceedings. She contended in her affidavit that her obtaining a medicolegal report to ascertain the testamentary capacity of Leon at the time of the April 2018 will had failed because her two legal teams had been unable to obtain the necessary material as a basis for that report.
She sought access to the following: the medical evidence available to NCAT, material referring to Leon state of mind in April 2018, NSWTAG records and files, police files and ambulance records for Leon created between 2017 and 2020, files of the Vaucluse nursing home (including the dementia ward) where Leon was hospitalised, access to the files and records held by the Montefiore home (including the dementia ward), files of Leon’s treating doctors between 2017 and his death in 2020, together with the coroner’s file investigating the death of Carol.
Ms Abraham’s affidavits and her statements to the Court contain contentions that Ms Goldberg presently suffers from a disabling mental illness. This is contested. Ms Goldberg’s legal representatives have stated to the Court that they do not have concerns about her capacity to give instructions on her own behalf in these proceedings. The case that Ms Goldberg’s legal representatives are presenting on her behalf is clearly consistent with her financial best interests. The Court has no reason to doubt Ms Goldberg’s capacity to give instructions to her legal representatives. The way to raise such issues for the Court’s consideration is upon a motion to challenge the retainer of Ms Goldberg’s legal representatives. Ms Abraham has not brought such a motion.
Ms Abraham says she was unaware of Lindsay J’s orders until Ms Fay’s affidavit of 16 February 2024 was served upon her. This is not accepted. Mr Klooster’s courteous appearance on 2 February 2024 is an indication of the professional commitment of Ms Abraham’s lawyers. The Court does not accept that they did not properly discharge their professional duties by telling her of the 2 February 2024 directions hearing at which she failed to appear.
The Court then had to take additional steps to notify Ms Abraham again of the next directions hearing. Once again Ms Abraham proved herself a delinquent litigator. Once again Ms Abraham placed unnecessary financial burdens upon Ms Goldberg. Once again Ms Abraham casually wasted judicial resources by requiring the Court to undertake additional efforts to direct communications to her personally to encourage her to appear.
Much of what followed in 2024 involved case management of the respective motions once Ms Cohen came into the matter on behalf of Ms Abraham. The matter was before the Court on 8 March and 5 April 2024 when Ms Abraham represented herself. Ms Cohen first came into the matter had a further directions hearing on 28 June 2024. Ms Cohen then represented the plaintiff again on 26 July 2024, 27 September 2024, and 12 November 2024. Throughout this period submissions are exchanged and a Court book prepared by Ms Goldberg’s lawyers. There has been greater consistency in this matter on Ms Abraham’s side since Ms Cohen came to represent her but given Ms Abraham’s established history of changing representation away from competent lawyers, all legal representation on her behalf, even as effective as Ms Cohen’s has recently been, must be regarded as precarious.
With this background these reasons now turn to consideration of the issues relating to the application to strike out. Relevant parts of the parties’ submissions will be referred to during that consideration.
It should be noted that Ms Fay’s evidence establishes that all persons interested in the two estates have been properly served and no one has sought to appear. Ms Abraham is the only proponent of the 2014 will and the 2015 will.
One other issue should be noted. That was a contest about whether Ms Abraham can rely upon material which she obtained from NCAT. Mr Grant submits that her obtaining this material was contrary to various statutory provisions governing the integrity of material provided to NCAT. The court does not have to decide this question. The Court has decided not to look at this material as the presentation issues can be decided without it.
One aspect of Ms Goldberg’s submissions can be put to one side. Ms Goldberg submits that the Court should consider Ms Abraham's conduct in other proceedings in reaching its conclusion in the present contest. She points to proceedings before Elkaim AJ involving Ms Abraham, which have now resulted in a judgment: Willis v Abraham (No. 2) [2025] NSWSC 276. Ms Abraham was unsuccessful in maintaining a claim for adverse possession over allegedly abandoned property in suburban Sydney. Ms Goldberg seeks to rely upon evidence of Ms Abraham's conduct in that case as showing up Ms Abraham as in substance an opportunist, conduct which Ms Goldberg says is replicated in these proceedings. But the Court declines that invitation. These applications are decided solely upon the evidence in these proceedings.
In her reply submissions Ms Cohen contends that when Ms Abraham has had solicitors she did not appear to have significant problems in her prosecution of the proceedings. She points out that when Attwood Marshall and Mr Peter Wise were acting for Ms Abraham that the proceedings made reasonable progress. She further points out that Ms Abraham has even been active on her own behalf. Ms Abraham did for example appear in person on 8 March 2024 and 5 April 2024 as the transcript for both those days records.
Ms Cohen submits that Ms Abraham is affidavit of 5 March 2024 which she filed when acting for herself "appears to be a plea to obtain medical records and the records of the NSW trustee and Guardian" to assess the testamentary capacity of Leon. Ms Cohen submits that when Lindsay J made orders for expert evidence in relation to Leon's testamentary capacity, but Ms Abraham was unable to comply with them because she had no access to the subpoenaed documents which included medical records of Leon and she was not allowed to issue further subpoenas for similar records.
Ms Cohen points out that Mr Gran's characterisation of Ms Abraham's case is one of complete procedural neglect is not correct and there are many examples of her efforts to advance a case. One of these which Ms Cohen cites is Ms Abraham's payment in contribution of her share of the professional fees of the expert handwriting expert, Ms Melanie Holt.
Ms Cohen submits that at this stage the parties should be given access to documents under subpoena, so far as they are considered relevant and should be able to obtain documentation from NSW trustee and Guardian as to the reason for the removal of Mr Michael Vaughan as the financial manager of Leon.
Ms Cohen says that Ms Abraham's cannot explain why Mr Wise did not appear for Ms Abraham at the various directions hearings, when he was engaged for her. Ms Cohen submits that Ms Abraham's only real failure in this litigation is in not filing expert evidence.
In summary Ms Cohen says that given the size of the estate and the multiple issues that have been raised by both sides it would be inappropriate for the Court to exercise its Civil Procedure Act, s 61(3) discretion to strike the proceedings out. Moreover, Ms Cohen says that the Court should not exercise its UCPR r 13.4 jurisdiction for similar reasons. Ms Cohen points to the fact that Ms Abraham only receives limited benefits through a legacy under the 2015 will and that she has already spent considerable funds in what really are her efforts on behalf of the other beneficiaries must. Ms Cohen says she has done all she can within her limited financial resources. Moreover, Ms Cohen points out that Ms Goldberg will still receive 50% of Leon's estate on bare trust under that will and if sui juris will be able to call for that half of the estate.
Mr Grant took issue with these submissions. Only one matters which he raised in these submissions needs be mentioned. Much of his reply was concerned with taking issue with matters in Ms Abraham's and Ms Cohen's submissions on issues that are already discussed in the Court's earlier factual narrative. Mr Grant submits, based on affidavit evidence of Ms Fay that Ms Abraham is co-owner of a six-bedroom seven bathroom four garage property on the Gold Coast in Queensland which is said to be presently worth almost $8 million and that she has sole ownership of a four bedroom three bathroom one garage property in Burradoo in the New South Wales Southern Highlands worth over $3 million. He strongly contests her contention that she is without means.
Subsequent submissions from Ms Cohen deal with similar matters and need not be further elaborated.
An important consideration in determining this application is the nature of probate proceedings, which are part the public interest proceedings. The Court must consider the public interest characteristics of probate litigation. Although decided in the context of an application for security for costs in probate proceedings, statements of Lindsay J in Re the Estate of Condon; Battenburg v Phillips [2017] NSWSC 1813 ("Condon") identify the relevant issue concisely:
Fourthly, Ms Abraham should be allowed to review the medical evidence produced on subpoena so that these proceedings can now be accelerated on a tight timetable towards the obtaining of expert evidence and a final hearing. The present application brought by Ms Goldberg will not be dismissed. It was well warranted. It should lie in reserve and be able to be reactivated if Ms Abraham unacceptably defaults or changes legal representation again. The non-dismissal of this application may have costs consequences that can be resolved by further submissions once Ms Abrahams affidavit of financial circumstances is received.
Fifthly, Linday J's orders for the filing of expert evidence were made in a context where he did not have the benefit of the presentation on Ms Abraham's behalf as to the detail of all the present material about Leon's capacity in April 2018 which is now available. Some of the present evidence was available then to Lindsay J. His Honour's orders were designed keep a tight rein on the proceedings, but in the several ways mentioned here, the situation has now changed.
Sixthly, there is not yet any direct evidence from Ms Goldberg about many of the matters that Ms Abraham raises about which she could give answering evidence. The Court is not comfortable to dismiss Ms Abraham's case in the absence of direct countervailing evidence, in any event.
The real contest between these parties concerns what should be done about Ms Abraham's persistent and repeated defaults in the prosecution of these proceedings. The Court has now put in place a mechanism to deter such behaviour in the future and ensure the orderly further conduct the proceedings.
The proceedings should be brought within proper bounds. Ms Abraham will not be permitted at this stage to issue subpoenas concerning the health of Ms Goldberg as its relevance to the proceedings is doubtful and there is no challenge to the retainer of their legal representatives for Ms Goldberg. But some limited subpoenas in relation to Leon’s and Carol’s personal circumstances at the time of the 2014 and 2018 wills can be allowed. Further argument about subpoenas is reserved.