Bailey v Bailey

Supreme Court of NSW|2019-03-18|Before: Lindsay J

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

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

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

The Nature of these Proceedings

Before the Court are two separate sets of proceedings which invoke the probate jurisdiction of the Court and which, in common, invite consideration of principles informing practice of the Court (in the conduct of the Probate List in the Equity Division) relating to the issue of "subpoenas for production" of documents, and the service of "notices to produce to court", at an interlocutory stage of the proceedings well in advance of appointment of a date for final hearing.
In neither case is there need of an order, a subpoena for production or a notice to produce directed towards the production of a will or other testamentary instrument. In each case, the parties have identified the deceased's last will and earlier wills which may be in competition with it for admission to probate.
Nevertheless, a review of the law and practice relating to the use of procedures for the compulsory production of documents in aid of probate proceedings (in particular, an application for admission of a will to probate or a comparable procedure) requires consideration of the means by which a person who is, or may be, interested in a deceased estate can investigate the existence of a will and the circumstances of its preparation and execution.
What both cases before the Court highlight is the central importance of 1. a consensus about the real issues in dispute in probate proceedings; 2. identification of a proper forensic purpose in seeking the production of documents; 3. avoidance of oppression in deployment of procedures for the compulsory production of documents; 4. recognition that engagement of the Court's procedures for the compulsory production of documents must be governed by considerations of reasonableness, in the application of case management principles, in the particular case; and 5. an understanding that, in management of a probate case, the Court may adapt its procedures to facilitate the determination of real issues in dispute by, for example: 1. permitting documents to be brought within the control of the Court at an early stage of proceedings, if need be deferring any inspection of them until parties have identified a reasonable foundation for access at the particular time; or 2. directing that a solicitor or other person who prepared, or arranged for execution of, a will explain the circumstances in which the will was prepared or executed.
Disputation about the availability or scope of procedures for compulsory production of documents in probate proceedings is often a function of a lack of clarity about the issues to be determined in the principal proceedings. If there is a consensus about the real issues in dispute, the categories of documents required to be produced to the Court, in aid of a just determination of the proceedings, becomes substantially less contentious.
For this reason, it is important to appreciate: 1. the customary nature of pleadings on an application for a testamentary instrument to be admitted to probate. (Standard form probate pleadings are reminiscent of old style common law "issue pleadings" rather than "fact pleadings" traditionally characteristic of equity proceedings); 2. the standard grounds for challenging the validity of a will (no due execution, testamentary incapacity, absence of knowledge and approval, fraud, and coercion characterised as undue influence in probate practice); and 3. principles governing onus of proof, and presumptions, in probate proceedings.
If and when the parameters of a case are set, questions about the availability of procedures for the compulsory disclosure of documents (or other forms of "discovery", such as interrogatories) and the scope of "orders" for the production of documents (whatever may be the form of such orders) are governed by considerations of what is reasonably required for a just determination of the principal proceedings.
An allowance can be made for a need to conduct an investigation into whether a testamentary instrument is, or is not, the last will of a free and capable testator; but that too is governed by considerations of reasonableness: (a) in identification of a case for inquiry, including identification of a legitimate forensic purpose in pursuit of an investigation; and (b) in avoidance of oppression.
The merits of each case must ultimately be considered on the facts of the particular case, in the context of case management principles, having regard to the purpose for which probate jurisdiction exists.
A reference to "case management principles" is a reference to the "Guiding Principles" set out in Division 1 (sections 56-60) of Part 6 of the Civil Procedure Act 2005 NSW ("CPA"). The Court's "overriding purpose" is to facilitate the just, quick and cheap resolution of real questions in dispute: CPA section 56. Proceedings are to be managed having regard to objects which include the just determination of the proceedings, the efficient disposal of the business of the Court in a timely and cost-effective manner: CPA section 57. The Court must act in accordance with "the dictates of justice", elaborated by reference, inter alia, to the degree of difficulty or complexity to which the issues in the proceedings give rise and the degree of injustice that would be suffered by the respective parties to proceedings as a consequence of any order or direction made by the Court: CPA section 58. Delay is to be minimised: CPA section 59. Costs should be kept proportionate to the importance and complexity of the subject matter in dispute: CPA section 60.
The task of the Court is to carry out a deceased person's duly expressed testamentary intentions, and to see that beneficiaries get what is due to them: In the Goods of William Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192.

An Application for Disclosure

The first set of proceedings (numbered 2018/00310910) relates to the estate of Agnes Kelly Brooker-Pain who died on 26 September 2018 aged 98 years, leaving an estate with an estimated value of approximately $1.5 million and a last will dated 12 April 2014, probate of which is sought by the plaintiff.
The defendant having filed a caveat, the plaintiff filed a statement of claim (seeking a grant of probate of the will dated 12 April 2014 in solemn form) naming the defendant as her contradictor.
No defence or cross-claim has yet been filed.
The deceased is believed to have executed the following testamentary instruments, here identified in chronological order: a will dated 22 May 1978; a will dated 9 February 2009; a will dated 20 October 2009; a letter (said to be an informal will) dated 22 October 2009; a codicil dated 13 July 2012; and the contested will dated 12 April 2014.
The plaintiff is a granddaughter of the deceased and a beneficiary under the contested will, and earlier wills of the deceased. The defendant is a daughter of the deceased who, although a beneficiary under earlier wills, was excluded from the contested will.
By a notice of motion filed on 9 January 2019, the defendant applies to the Court for: (a) leave to issue subpoenas for production directed to specified hospitals and health care professionals relating to medical treatment of the deceased; and (b) an order, under CPA section 68, for the production of documents by the solicitors for the plaintiff (formerly solicitors for the deceased) relating to the preparation and execution of the contested will.
She also applies, orally, for an order, pursuant to CPA section 61, that the plaintiff provide to the defendant, within a specified time, the names of doctors or medical professionals who treated the deceased (other than those identified by the defendant as known to her) in the period 2011-2018.
CPA sections 61 and 68 are in the following terms: "61 Directions as to practice and procedure generally (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed, (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate. (4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court. … 68 Attendance at court and production of documents and things to court Subject to rules of court, the court may, by subpoena or otherwise, order any person to do either or both of the following: (a) to attend court to be examined as a witness, (b) to produce any document or thing to the court."
The defendant suspects that the deceased lacked testamentary capacity at the time she executed the contested (2014) will, and that she may have executed it under undue influence.

An Application to Set Aside Subpoenas and Notices to Produce

The second set of proceedings (numbered 2018/00050908) relates to the estate of Rene Soulos who died on 27 January 2018 aged 98 years, leaving an estate with an estimated value of approximately $35 million and a last will dated 13 March 2017, probate of which is sought by the plaintiffs.
The defendant having filed a caveat, the plaintiffs at my invitation filed a statement of claim (seeking a grant of probate of the will dated 13 March 2017 in solemn form) naming the defendant as their contradictor.
The deceased was survived by four children. The plaintiffs are, respectively, her accountant, her solicitor, and one of her sons. The defendant is also a son.
The defendant has filed a defence challenging the validity of the will dated 13 March 2017 on the grounds that the deceased lacked testamentary capacity and that she signed the will without knowledge and approval of its contents.
He has also filed a cross claim in which he makes alternative claims for relief; namely: (a) a grant of letters of administration of the estate of the deceased upon the basis that she died intestate; (b) alternatively, orders for admission to probate of a will of the deceased dated 5 November 2015; and (c) if the deceased is not found to have died intestate, orders for family provision relief out of the estate of the deceased under Chapter 3 of the Succession Act 2006 NSW.
The deceased is believed to have executed 16 wills respectively dated (in chronological order) 17 January 1995, 22 January 2003, 3 February 2003, 4 June 2008, 11 June 2010, 12 May 2011, 18 May 2011, 13 December 2012, 22 March 2013, 26 March 2013, 30 January 2015, 11 March 2015, 20 October 2015, 5 November 2015, 8 February 2017 and 13 March 2017. I have not located the will dated 20 October 2015.
In his cross claim, the defendant alleges that, between 17 January 1995 and 13 March 2017 or thereabouts, the deceased purported to make these 16 wills, each of which is alleged to have been made without her knowledge and approval. This allegation grounds the defendant's claim that the deceased died intestate. His alternative claim (for the will dated 5 November 2015 to be admitted to probate) is based upon a contention (additional to his allegation of a want of knowledge and approval) that, when she executed two later wills (respectively dated 8 February 2017 and 13 March 2017) the deceased lacked testamentary capacity.
By a notice of motion filed on 14 November 2018, the plaintiffs seek to set aside: (a) three notices to produce to court dated 29 October 2018, one addressed to each plaintiff; (b) a subpoena addressed to Concord Repatriation General Hospital, filed 1 November 2018; and (c) a subpoena addressed to the plaintiffs' solicitors, filed on 5 November 2018.
Each of these documents seeks the production of documents for the period between 7 December 2003 and 27 January 2004. The subpoena addressed to Concord Hospital seeks medical records relating to the deceased. The subpoena addressed to the solicitors seeks production of their file, or files, relating to the preparation and execution of wills of the deceased. The notices to produce are expressed in terms similar to the subpoena addressed to the solicitors.
The plaintiffs contend that, in their scope, these demands for compulsory disclosure of documents are unduly wide and oppressive, and not directed to questions genuinely in dispute in the proceedings.
Although the plaintiffs' notice of motion seeks an order that the subpoena addressed to Concord Hospital be set aside, the Hospital produced documents to the Court in answer to the subpoena on 13 November 2018, prior to the hearing of the motion. In that light, the motion is, in effect, an application for refusal, or limitation, of the defendant's access to the Hospital records.
No documents have been produced to the Court in answer to the other process sought to be set aside.

PROCEDURAL FRAMEWORK

In concept, proceedings on an application for a grant of probate or administration may involve invocation of procedures commonly used in ordinary civil proceedings for the "disclosure" of documents material to the application - procedures such as "discovery of documents" (Uniform Civil Procedure Rules 2005 NSW Part 21); administration of interrogatories (UCPR Part 22); subpoenas for production (UCPR Part 33); notices to produce (UCPR Parts 21 and 34); and orders for the production of documents (CPA section 68, if not also CPA section 61). Whether "preliminary discovery" procedures (governed by UCPR Part 5) are available is a moot point. They are not commonly referred to in the context of probate proceedings.
In practice, the procedures most commonly deployed are subpoenas for production; notices to produce to court; and applications for a direction that affidavits be filed and served on particular issues, such as the circumstances in which a will was prepared or executed. Each of these procedures is amenable to case management principles.
In former times, the Court was more vigilant than it now is about the deployment of subpoenas for the production of documents at a time when no trial, hearing or application is pending. In Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98, Powell J held that where a party (at a time when no trial, hearing or application was pending) caused subpoenas to be addressed to strangers to litigation calling upon them to produce documents as a means of obtaining further and better discovery, the Court could set aside the subpoenas as an abuse of the processes of the court.
The strictness of that approach was displaced no later than enactment of the Civil Procedure Act and the Uniform Civil Procedure Rules in 2005: JP Hamilton, "Nuts and Bolts for Judicial Officers" in Lindsay (ed), The Handbook (Law Book Co., 2005) at [9.2200]; Azzi v Volvo [2006] NSWSC 283 at [10]. This is consistent with the development of case management theory which informs practice governed by the CPA and the UCPR. Questions about "discovery" are now more routinely dealt with at directions hearings than they were in an era in which "trial preparation" was generally undertaken with less direct supervision by the Court than is now common.
General discovery (based upon an order for discovery or service of a notice for discovery after the close of pleadings) was "abolished" at about the same time as parties were allowed greater latitude in the service of subpoenas for production and notices to produce. Subpoena and discovery processes are generally now directed to production of identified classes of documents rather than all documents "relevant" to issues defined by pleadings: Azzi v Volvo [2006] NSWSC 283 at [10]-[11]; Cf, K. F. O'Leary and A. E. Hogan, Principles of Practice ad Procedure (Butterworths, Sydney, 1st ed, 1976), Chapter 20 and Chapter 23 section 3. One consequence of this is that particular vigilance may be required in prevention of abuses of process attending indiscriminant deployment of subpoenas and notices to produce.
Under current rules of court, a subpoena for production (UCPR Part 33) and a notice to produce to court (UCPR, Part 34) have substantially the same effect, material differences being that: 1. a subpoena is issued by the Court, on the application of a party, and can be directed to any person, whether a party to the proceedings or not. 2. a notice to produce to court is not issued by the Court, but simply served by a party, and can be directed only to a party.
By definition, a subpoena to produce is an order in writing requiring the addressee to produce a document or thing to the Court: UCPR rule 33.1. Subject to formalities as to service having been complied with, an addressee must comply with the subpoena by production to the Court of a document or thing specified in the subpoena: UCPR rule 33.6. A failure to comply with a subpoena without lawful excuse is a contempt of court: UCPR rule 33.12.
A party served with a notice to produce to court, requiring a document or thing to be produced to the Court, must comply with the notice without the need for any subpoena for production: UCPR rules 34.1-34.2. At common law, there was no obligation on a person on whom a notice to produce had been served to produce any document, the consequence of non-production being that otherwise inadmissible secondary evidence of the document could be adduced by the party serving the notice: H. H. Glass (ed), Seminars on Evidence (Law Book Co, Sydney, 1970), Chapter 1 (by A.R. Moffitt). The element of compulsion was introduced by the Supreme Court Rules 1970 NSW, Part 36 rule 16, the template for UCPR rules 34.1 - 34.2: Hogan and O'Leary, op. cit., paragraph [23.302].
A subpoena to produce and a notice to produce to court may specify one or more identified documents for production to the Court. Customarily, however, they specify classes of documents (described generically) for production.

PRACTICE NOTE NO. SC EQ 11

In March 2012, in exercise of a power for which CPA section 15 provides, the Chief Justice issued a practice note in the following terms (with emphasis added). "PRACTICE NOTE SC Eq 11 Disclosure in the Equity Division Commencement 1. This Practice Note was issued on 22 March 2012 and commences on 26 March 2012. Application 2. This Practice Note applies to all new and existing proceedings in the Equity Division, except in the Commercial Arbitration List. Purpose 3. This Practice Note is for the guidance of practitioners in preparing cases for hearing in the Equity Division with the aim of achieving the just, quick and cheap resolution of the real issues in dispute in the proceedings. Disclosure 4. The Court will not make an order for disclosure of documents (disclosure) until the parties to the proceedings have served their evidence, unless there are exceptional circumstances necessitating disclosure. 5. There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings. 6. Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out; the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings; the classes of documents in respect of which disclosure is sought; and the likely cost of such disclosure. Costs 7. The Court may impose a limit on the amount of recoverable costs in respect of disclosure."
Practice Note SC Eq 11 was issued as the Court's response to widespread concern that procedures for "the discovery of documents" (generically, "disclosure of documents") were being abused to the point of impeding the orderly conduct of proceedings, and imposing on opposing parties prohibitive costs and an unacceptable risk of onerous costs orders: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393 at [64]-[66]; Leighton International v Hodges [2012] NSWSC 458 at [4]-[7]. In essence, as an aid to a focus of attention on the real issues in dispute the Practice Note requires parties, in the ordinary course, to put their best case forward in the service of evidence (implicitly, after the close of pleadings, if any) before expectation of any form of order for "disclosure" of documents.
Probate law and practice does not fit neatly into the conceptual framework of Practice Note SC Eq 11. That is because: 1. the effective conduct of probate proceedings may require that, at an early stage of the proceedings, all interested parties be assisted by: (i) steps taken to bring within the control of the Court all known testamentary instruments of the deceased, the file of a solicitor who drafted one or more of those instruments, and medical or other records bearing upon the deceased's testamentary capacity; and (ii) a direction that a person (usually, but not necessarily, a solicitor) who prepared a will, or supervised its execution, explain the circumstances surrounding preparation and execution of the will; 2. the assistance of the Court might be required to locate, and cause to be brought into court, the deceased's testamentary instrument(s); and 3. although the concept of "exceptional circumstances" for which paragraph 4 of the Practice Note provides focusses attention on a "necessity" for disclosure, by reference to the real issues in dispute, in the particular case (Leighton International v Hodges [2012] NSWSC 458 at [10] and [18]-[20]; Danihel v Manning [2012] NSWSC 556 at [16]), such a "necessity" will often be more readily found in probate proceedings than in other types of proceedings because of the nature of the probate jurisdiction in administration of the affairs of the dead.
Nevertheless, the Practice Note applies, in terms, to the conduct of the Probate List in the Court's Equity Division.
It does not, in terms, apply to the deployment of subpoenas for the production of documents or notices to produce to court, but similar considerations may inform decision-making about the deployment of subpoenas and notices to produce: Re Mempoll Pty Ltd [2012] NSWSC 1057 at [12]; Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [55].
Its field of operation is the provision of "guidance" against a premature, or unnecessary, resort to procedures for "disclosure of documents". It requires a party who seeks a "disclosure order" to make disclosures about his, her or its own case, either by service of evidence in the principal proceedings or evidence justifying the application for a disclosure order.
In proceedings in the Probate List, on an application for leave to issue subpoenas for production of documents or to serve notices to produce to court (or, perhaps more often, on an application to set aside a subpoena or notice to produce given that dates for the return of subpoenas and notices to produce may be given administratively by the Court's Registry without full inquiry about case management considerations), the topics canvassed by the Court may include those identified in paragraphs 4-6 (inclusive) of the Practice Note: 1. What are the real issues in dispute in the principal proceedings? 2. What, if any, exceptional circumstances necessitate use of the subpoena process before the parties have served their pleadings or evidence? 3. Why is engagement of the subpoena process at that particular time necessary for the resolution of real issues in dispute? 4. Why are particular subpoenas and notices to produce necessary for the resolution of real issues in dispute? 5. What, if any, classes of documents are necessary for the resolution of real issues in dispute?
Parties to a dispute about subpoenas and notices to produce in the Probate List need to be able to identify the "interest" in the proceedings of each party as a foundational consideration. A party will have a sufficient "interest" if he, she or it has a right which will be affected by a disputed grant of probate or administration: Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [49].
A sufficient interest having been identified, a foundational inquiry underpinning any order the Court might make is: What are the real issues in dispute in the principal proceedings?
Parties should be in a position to address that inquiry by reference to the standard grounds for challenging a will: (a) absence of due execution; (b) absence of testamentary capacity; (c) absence of knowledge and approval; (d) fraud; (e) undue influence (coercion). If there is perceived to be another ground of challenge, it needs to be exposed to analysis.
An inability to address the grounds of challenge to a will, and to demonstrate a reasonable connection between a ground relied upon and each subpoena or notice under review, might be a critical factor against allowance of such process.
The use of a subpoena for the production of documents or a notice to produce to circumvent the Practice Note may constitute an abuse of process: Azzi v Volvo [2006] NSWSC 283 at [11]; Owners Strata Plan SP 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502 at [23]-[24].
If a subpoena for the production of documents, or a notice to produce, is served (without the leave of the Court) before the close of pleadings or before the service of affidavits setting out the nature of a party's case, the existence of the Practice Note highlights a need for court process of those types to be supported by an identifiable, proper forensic purpose.
If a subpoena or notice to produce is not supported by a proper forensic purpose, or if it is oppressive in nature or scope, or if its deployment is unreasonable in the prevailing circumstances, it is liable to be set aside as an abuse of the processes of the Court or, at least, as inappropriate upon an application of case management principles.
In this context, what is, or is not, appropriate upon an application of case management principles will be governed by identification of real issues in dispute in the principal proceedings; the reasonableness of the deployment of the subpoena process in the particular case at the particular time; and the proportionality of costs involved in the use of the subpoena process, at the particular time, in the particular proceedings.
Consideration of questions about proper forensic purpose, procedural oppression and case management principles generally need to take into account the issues in the particular case, bearing in mind the location of the onus of proof on particular issues and the reasonableness of any inquiry sought to be advanced.
Allegations of fraud and undue influence need to be approached with caution. They are more easily made than justified. They hold an allure for disappointed beneficiaries which sometimes transcends cold rationality.
Each case ultimately depends on its own facts.

PRACTICE AND PROCEDURE IN PROBATE LITIGATION

Probate proceedings have several idiosyncratic features (apart from an ever-present, potential need to evaluate evidence concerning the conduct or words of a person, or persons, "absent" by reason of death or incapacity): 1. If a will is to be given full legal effect, it needs to be "proved" to be the last will of a free and capable testator, proof of which is signified to the public by admission of the will to probate by an order of the court. A grant of probate, or letters of administration, represents both an order of the Court and an instrument of title: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [228]-[233] and [275]-[283]. 2. Probate litigation is "interest litigation" in the sense that one must have an identifiable (albeit not necessarily substantial) interest in the outcome of proceedings in order to be a party to them: Gertsch v Roberts (1993) 35 NSWLR 631 at 634B-C; Nobarani v Maricote [2018] HCA 36; (2018) 92 ALJR 806 at [49]. 3. Probate proceedings involve a strong public interest element focussed upon a need for probity, order and reliability in succession to property, and directed towards effect being given to the competent wishes and intentions of a deceased person: Photios v Photios [2019] NSWCA 158 at [77] (ii) and [79]. A grant of probate or administration is a public act, an act "in rem". In a general sense, a grant "binds the world" because of its function as an instrument of title. 4. The concept of "parties" to proceedings differs in the context of probate proceedings compared with ordinary civil proceedings. A person interested in the outcome of probate proceedings may be bound by the outcome even though not a party to the proceedings if on notice of the proceedings and possessed of a reasonable opportunity to intervene in them: Osborne v Smith (1960) 105 CLR 153 at 158-159. For that reason, in the interests of an orderly succession to property, the Court encourages notice of proceedings to be given to all persons potentially interested in the proceedings. Unless this is done, a will cannot be admitted to probate in solemn form. 5. The procedure for a person interested in a deceased estate to file a caveat against a grant of probate or administration in respect of the estate is directed not to provision of notice to a particular person but, rather, to provision of notice to the Court not to allow proceedings to be taken without notice to the caveator: Moran v Place [1896] P 214 at 216-217 and 219-220; In re Emery [1923] P 184 at 187; In the Will of Mary Ann Clarke (1922) 22 SR (NSW) 228. 6. Because of the public interest in an orderly succession to property, no form of privilege necessarily attaches to evidence about the circumstances in which a will was executed: In the Estate of Fuld, deceased; Hartley v Fuld (Attorney General intervening [1965] P 405 at 409-411; Re Estate Pierobon, deceased [2014] NSWSC 387; Boyce v Bunce [2015] NSWSC 1924 at [145] et seq. 7. Principles governing the finality of litigation can operate differently in the context of a determination of an application for probate compared to other civil proceedings, focusing attention on the distinction between a grant of probate "in common form" and a grant of probate "in solemn form" and the circumstances in which a grant can be revoked: Estate Kouvakas [2014] NSWSC 786 at [236]-[274] and [284]-[317]. A grant in common form (customarily made, administratively, in non-contentious proceedings) is more readily revoked than a grant in solemn form (customarily associated with contested proceedings). 8. Although legislation (currently, principally the Succession Act 2006 NSW, section 6) prescribes formal requirements for a valid will, it also (currently, by the Succession Act 2006, section 8) authorises admission to probate of an "informal will" which bears the character of a "will" if the Court is satisfied that statutory criteria have been met: Hatsatouris v Hatsatouris [2001] NSWCA 408 at [141]; Estate Angius [2013] NSWSC 1895 at [260]; Estate Moran; Teasel v Hooke [2014] NSWSC 1839 at [26]-[28]. An "informal will" can be made via a video or other form of electronic recording: eg, Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107. Informal wills are not uncommonly found on a deceased person's computer or mobile phone. 9. Probate proceedings might be pursued as a preliminary to, or in tandem with, an application for family provision relief under Chapter 3 of the Succession Act. In family provision proceedings Practice Note SC Eq No. 7 governs procedures for the disclosure of information about a deceased estate. Paragraph 9.1 of that Practice Note requires the administrator of an estate to make prescribed disclosures verified by affidavit. At the margins of those disclosure requirements, consideration of what is required is governed by what is reasonable, in light of what is required for a just determination of a claim for family provision relief, in all the circumstances: Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104 at [120] et seq. An administrator can be examined on the sufficiency or otherwise of his or her disclosures: Re Estate Grundy (No. 2) [2018] NSWSC 1495. The procedure followed on such an examination may adapt those applicable to an examination into the adequacy of answers to a subpoena or notice to produce: Pyoja Ltd v 284 Bronte Road Developments Pty Ltd (2006) NSWLR 1. 10. Pleadings in proceedings for admission of a will to probate are action-based, "issue pleadings" (as distinct from narrative pleadings of material facts, "fact pleading") in which questions of onus of proof and "presumptions" loom large and the grounds for challenging the validity of a will are, in practice, confined to comparatively few standard grounds, usually pleaded in the form of a general statement elaborated by particulars and supported by affidavits directed to contested issues. 11. The ultimate (legal) onus on the propounder of a will to prove that it was the last free will of a free and capable testator carries with it the consequence that any contradiction of such a case is, in theory, available as a defence to an application for its admission to probate. In practice, a challenge to the essential (as distinct from formal) validity of a will is generally limited to standard grounds: (i) an allegation that the will-maker lacked testamentary capacity at the time the will was made; (ii) an allegation that the will maker lacked knowledge and approval of the contents of the will at the time it was made; (iii) an allegation that execution of the will was procured by fraud; and (iv) an allegation that execution of the will was procured by undue influence (meaning, in probate, coercion) by another person or persons. The propounder of a will generally bears the onus of proof on the first two issues (that is, an onus to prove testamentary capacity and knowledge and approval) as an incident of the ultimate onus. The onus of proof on an allegation of fraud or undue influence lies on the person making the allegation: Tobin v Ezekiel (2012) 83 NSWLR 757 at [55]. An allegation that execution of a will was attended by "suspicious circumstances" is not an independent ground of challenge to a will, but an allegation that informs consideration of the standard grounds of challenge, particularly "knowledge and approval". It is no less common for that. 12. A challenge to "testamentary capacity" is commonly accompanied by a challenge to "knowledge and approval". An allegation of a want of "knowledge and approval" is not uncommonly used as a vehicle for an allegation of "suspicious circumstances" as a means of displacing a presumption of validity arising from due execution of a will. Forensically, an allegation of "suspicious circumstances" is sometimes used as a bridge to allegations of "fraud" or "undue influence", or as a substitute for them, although it needs to be recognised as falling a long way short of any allegation of "fraud" or "undue influence", each of which must be pleaded explicitly, if advanced at all.
In the disposition of probate proceedings, an exercise of the Court's costs jurisdiction may require the Court to make an allowance for the possibility that the circumstances of the particular case led reasonably to an investigation of a document propounded as a will. In NSW, the costs jurisdiction in probate is generally described by reference to Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709F. As White J explained in Gray v Hart; Estate of Harris (No. 2) [2012] NSWSC 1562, the Court's approach has historical origins in Mitchell v Gard (1863) 3 Sw & Tr 257; 164 ER 1280.
Probate proceedings commonly require preliminary inquiries that not only involve a cost, but also require curial assistance. That assistance is commonly sought via the issue of subpoenas for the production of documents, the service of notices to produce to court, orders for the filing of affidavits on contentious issues and directions generally.

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

Proceedings for admission of a will to probate traditionally involve a unique combination of principles relating to the (legal) onus of proof and a shifting (evidentiary) onus arising from the "presumptions" of fact associated with procedural steps customarily taken in the process of execution of a formal will.
A modern standard exposition of these principles is found in the judgment of Meagher JA (with whom Basten and Campbell J JA agreed) in Tobin v Ezekiel (2012) 83 NSWLR 757 at [43]-[ 49] and [51]-[53]: "[43] The appellants' first argument, as the primary judge observed, raises for consideration the relationship between knowledge and approval of the contents of the will, which the proponent must establish, and undue influence which is a defence to be made out by the opponent. More broadly it raises the inter-relation of suspicious circumstances, undue influence and testamentary capacity which, as Sopinka J observed in Vout v Hay [1995] 2 SCR 876 at 885, has perplexed both courts and litigants since Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089. [44] The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528. [45] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. [46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528. [47] Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42]. [48] In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995. [49] It is then necessary to consider the relationship between the requirement that the will be that of a "free" as well as "capable" testator and the principles relating to the proof of undue influence. In this context undue influence means that the testator has been coerced into doing what he or she did not desire to do. What must be established is that execution was obtained by the exercise of "the power unduly to overbear the will of the testator": Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83; Baudains v Richardson [1906] AC 169 at 184-185; Craig v Lamoureux [1920] AC 349 at 357; Bailey v Bailey at 571-572; Bridgewater v Leahy [1998] HCA 66; 194 CLR 457 at [62] fn 55; Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; 14 BPR 26,867 at [60]-[64]. Where the will has been executed by a person of competent understanding and, judged by the circumstances of execution, "apparently a free agent", the burden of proving that the will was executed under undue influence is on the party who alleges it: Boyse v Rossborough (1857) 6 HL Cas 2 at 49; 10 ER 1192 at 1211; Parfitt v Lawless (1872) LR 2 P & D 462 at 469; Craig v Lamoureux at 356-357; Bailey v Bailey at 571-572; Trustee for the Salvation Army (NSW) Property Trust v Becker at [76]. … [51] Circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the testator's knowledge and approval of the contents of the will. Tyrrell v Painton was such a case. There it was said by each of the members of the Court (at 157, 159) that those propounding the will must prove affirmatively knowledge and approval before the onus is cast on those who oppose the will to prove undue influence or fraud. For that reason it is appropriate, in the absence of good reason, to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent bears the onus: see the discussion in McKinnon v Voigt at 551, 557, 561-562. However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved: Low v Guthrie [1909] AC 278 at 281-282; Nock v Austin at 528; Vout v Hay at [29]-[30]. At the same time, the absence of any allegation of undue influence or fraud does not prevent the opponent putting knowledge and approval in issue and vigorously challenging the veracity of those propounding the will: Wintle v Nye at 294. [52] In Boyse v Rossborough Lord Cranworth (at 44-45; 1209) distinguished between a testator who knows and approves the contents of the will and executes it of his or her own volition and a testator who knows and approves the contents of the will but executes it as a result of coercion or fraud. To illustrate the difference he gave this example (at 44-45; 1209): 'If I meet a man in the street, and he puts a pistol to my breast, and threatens to shoot me if I do not give him my purse, and to save my life I yield to his demand; or if a neighbour, meaning to steal my horse, asks for the loan of it, stating that he wants it in order to go to market, and trusting to this representation I deliver it to him, and then he rides off and sells it,-in both these cases it was my will to hand over the purse and the horse; but the law deals with the case as if they had been obtained against my will, my will having been the result in one case of fear, and in the other of fraud. The same principles must guide us in determining whether an instrument duly executed in point of form, so far as legal solemnities are concerned, is or is not a valid will.' [53] That analysis will not apply to all instances involving the exercise of undue influence or fraud. For example, coercion may result in the testator signing an instrument whose contents are to some extent unknown. Or the testator may be mistaken as to the contents of the will as a result of fraud. In such cases the circumstances may also give rise to a suspicion or doubt as to knowledge and approval and the satisfaction of the requirement of affirmative proof would likely disprove the suspected undue influence or fraud. In the remaining cases, notwithstanding that the court may be satisfied that the testator appreciated what he or she was doing, there will still be a live issue as to whether what was done was as a result of coercion or fraud".
In probate practice, allegations of "undue influence" and "fraud" are fundamentally different concepts: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; (2007) 14 BPR [98369] at [61] and [63]-[69]. To prove "undue influence" in probate, it must be shown that the testator did not intend and desire the disposition of property made by a will; it must be shown that he was coerced into making it. "Fraud", sufficient to result in the invalidation of a testamentary disposition, is concerned with misleading or deceptive conduct; with fraud, there is no overpowering of the volition, no coercion. Whereas "undue influence" coerces a testator, "fraud" misleads him.
The traditional probate presumptions are presumptions of fact (not law), liable to be rebutted by evidence, but their gravitational pull on the conduct of an application for admission of a will to probate is substantial.
The increasing prevalence of applications for admission of an "informal will" to probate may, in time, call into question the utility of analyses in terms of "presumptions". I repeat here what I wrote in Re Estate of Wai Fun Chan, deceased [2015] NSWSC 1107 at [18]-[24]: "[18] By its very nature, an informal will (that is, a testamentary document not executed in accordance with section 6) does not, without fundamental reservations, attract a traditional "presumption" of capacity or knowledge and approval arising from "due execution". [19] However, a reference to a "presumption" of this character in probate discourse is more empirical than prescriptive. It is an aid to the investigation of questions of fact, and to the determination of disputed questions of fact, in a world of imperfect knowledge. It might better be understood as an inference commonly drawn from established facts: Calverley v Green (1984) 155 CLR 242 at 264. [20] So understood, the wisdom probate "presumptions" encapsulate may be able to be harnessed in dealing with informal wills. [21] For example, if (as in the present proceedings) an informal will is rational on its face, and the process of its creation is equally, patently rational, common experience would lead most observers to infer (in the absence of some other fact) that the will-maker was mentally competent and that he or she knew and approved of the contents of the will. [22] The circumstance (fact) that the informal will was created at the instigation, or (as in this case) with the active involvement, of a substantial beneficiary would be likely, in common experience, to raise a suspicion about the status of the document which would, pending closer examination of all material facts, displace any inference of regularity that might otherwise commonly be drawn. [23] The facts that are to be regarded as "material" in this context are those that bear upon a decision as to whether the particular document was the last will of a free and capable testator. [24[ In each case the essential question, in deciding whether a particular document should be admitted to probate in whole or part, is whether it was the last will of a free and capable testator: Woodley-Page v Symons (1987) 217 ALR 25 at 35".
That the traditional language of probate law and practice needs to be understood in a contemporary setting may be illustrated by two judgments of the Court of Appeal.
In Zorbas v Sidiropoulous (No. 2) [2009] NSWCA 197 at [64]-[65] Hodgson JA (with whom Young JA and Bergin CJ in Eq. agreed) wrote as follows: "[64] As regards the applicable law, I would adopt the exposition of it by Windeyer J in Kerr v Badran [2004] NSWSC 735 at [48]-[50]: [48] Both medical experts were referred to the passage in Banks v Goodfellow which since that time has been accepted as the proper test in cases where testamentary capacity is the issue. I set it out once again, because this case requires proper attention to be paid to it. The test is at p 565 of the judgment as follows: It is essential to the exercise of such a power that a testator shall understand the nature of the act, and its effects; shall understand the extent of property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. The onus of proof is explained in Bailey v Bailey (1924) 34 CLR 558 and Estate of Hodges, dec'd; Shorter v Hodges (1988) 14 NSWLR 698. [49] In dealing with the Banks v Goodfellow test it is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at advanced age, problems which arise with age, such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing "the extent" of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life. The decision of Gleeson CJ in Estate of Griffith dec'd; Easter v Griffiths (1995) 217 ALR 284 at 290 must be kept in mind where he said: The formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to disclose one's assets by will is an important right, and a determination that the persons lacked (or, has not been shown to have been possessed) a sound disposing mind memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. This, of course, was a case of alleged delusion, but the general requirement for care is involved in all contested probate actions. Although he was in dissent, Kirby P in para 8 of his judgment, emphasised the need for caution and stated that medical evidence must be carefully looked at to ensure that it was considered in light of the relevant test and not what the medical expert using medical terminology considered to be the legal position. [50] Next it is important to bear in mind the decision in Worth v Clasohm (1952) 86 CLR 439. This explained that in a case where a doubt as to capacity is raised - thereby as explained in Shorter, satisfying the evidentiary onus on the defendant, the onus passing to the propounder to satisfy the court that the will propounded is valid - this does not mean that a doubt is enough; the doubt must be such that the court considers it sufficient to prevent its finding for the will propounded. [65] The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for common sense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation".
Young JA (with whom Bergin CJ in Eq. agreed) made the following additional observations at [94]-[95]: "[94] I should particularly note that I wholeheartedly endorse Hodgson JA's adoption of the view of Windeyer J in Kerr v Badran [2004] NSWSC 735 at [49] that even though this Court continues to accept the general authority of Banks v Goodfellow (1870) LR 5 QB 549, 567, insofar as that case asserts that a testator must be seen to have recollected the property he or she has to dispose of, it is not necessary that the testator know precisely the nature and worth of each and every asset in his or her portfolio. [95] Another matter that I should mention is that I have taken the view in the past that there is a lot to be said for the proposition that when the court is sitting in rem in probate, lawyers for the parties are obliged to assist the court by putting before the court all the expert material that they have collected, whether favourable or unfavourable, and not merely place before the court those experts who have finally agreed with their client's case. I do not know whether this view is commonly held, however, I believe that in the current atmosphere of impartial expert evidence before the court, it should be the rule. It may well be that when a judge in probate is considering whether to give leave to call expert evidence, he or she should ask whether all the expert evidence on the point amassed by the party concerned is going to be called, and not give leave to call selected experts unless assured that it is the most eminent expert who is giving evidence, or that there is some other good reason for calling that particular expert".
In Carr v Homersham (2018) 97 NSWLR 328 at [5]-[6] and [41]-[46] Basten JA (with whom Leeming JA agreed) wrote the following: "[5] Testamentary capacity is not a statutory concept but is derived from the case-law, from which the primary judge fairly took as his starting point the decision of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565. The concept is sometimes divided into component parts, with affirmative and negative elements. The primary judge accepted that there were three affirmative elements, namely: [3] (a) the capacity to understand the nature of the act of making a will and its effects; (b) understanding the extent of the property the subject of the will, and (c) the capacity to comprehend moral claims of potential beneficiaries. [6] The negative elements, commonly identified in archaic language, do no more than identify the conditions which might be understood to interfere with full testamentary capacity. They include "disorders of the mind" and "insane delusions". Too much attention should not be paid to the precise language of the negative elements; importantly, although they tend to be expressed in general terms, they are only relevant to the extent that they are shown to interfere with the testator's normal capacity for decision-making. … [41] The case-law in relation to the proof of wills is rife with statements as to when and where a burden of proof arises. Statements are commonly expressed in generic terms without attention to the specific issues raised. In other respects, their meaning may be obscure. As Campbell JA aptly noted in Tobin v Ezekiel (2012) 83 NSWLR 757, it is frequently important to know "who has the onus of proving some particular matter relevant to that litigation, and in what circumstances there is a shifting of the onus of adducing evidence concerning that matter." He continued, "the onus of adducing evidence concerning one matter relevant to the litigation might be shifted by evidence that is not enough to shift the onus of adducing evidence concerning another matter relevant to the litigation. [42] In cases involving allegations of incapacity, discussion frequently commences by reference to the reasoning of the High Court in Worth v Clasohm (1952) 86 CLR 439. That case provides a valuable starting point for present purposes because the facts bore a general resemblance to those in the present case. Further, it is necessary to give some explanation of the facts in order to appreciate the statement as to the burden of proof which appears in the last paragraph of the judgment. [43] Unlike many cases of that era which involved jury trials, the appeal came from the Supreme Court of South Australia, where the trial had been conducted by a judge alone. The High Court summarised the findings below in the following passage [at 86 CLR 441-442]: 'Due execution of the document as a will was proved, and the contest was confined to the issue of testamentary capacity. The learned judge found that at the date of the will the deceased, who may be called the testatrix, was suffering from senile degeneration and was subject to two delusions. One delusion was that people were stealing her possessions, but his Honour seems to have put this delusion on one side as having had no bearing upon her testamentary dispositions. The other delusion was that her food was being poisoned by certain relatives with whom she was living, and this delusion the learned judge thought was calculated to affect the mind of the testatrix in the matter of her dispositions. His Honour considered that, having regard to the course of a series of dispositions which she made over a period of some months before the date of the will propounded, a suspicion arose that her mind was affected by this delusion; and, feeling unable to say that the plaintiff had satisfied him judicially that the will was that … of a free and capable testatrix, he dismissed the action.' [44] In the final paragraph of the judgment, the Court expressed its approach and conclusions in the following terms [at 86 CLR 453]: 'A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. … The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.' [45] In Re Estate of Griffith (1995) 217 ALR 284, Gleeson CJ commenced his discussion of the relevant legal principles by reference to this passage in Worth v Clasohm. He continued [at 217 ALR 290]: 'This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's asset by will is an important right, and a determination that a person lacked (or has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. … Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind.' [46] There is a ready temptation to reformulate these propositions in the language of presumptions and shifting burdens, and by reference to burdens of adducing evidence and burdens of proof. However, such complexity is unlikely to be helpful and may distract from a determination of what is in substance a purely factual issue, the resolution of which will turn on the nature of the particular matters raised, and by whom".

COMMONLY ENCOUNTERED NEEDS FOR INFORMATION IN A PROBATE SUIT

In probate proceedings, problems commonly encountered by a person who has an expectation of inheritance by will or who seeks to challenge the validity of a will include the following: 1. identification of all testamentary instruments of the deceased, including arguably "informal wills". 2. investigation of the circumstances in which one or more particular testamentary instruments were prepared and executed. 3. investigation of a deceased person's medical condition at the time he or she executed, or otherwise adopted, one or more testamentary instruments.
Where there have been a succession of testamentary instruments, their terms and validity may determine whether a person who seeks to participate in an estate has a sufficient "interest" to do so.
Although a determination of testamentary capacity must be made as at a particular time (usually, the time of execution of a will but, exceptionally, as recognized in Bailey v Bailey (1924) 34 CLR 558 at 567 and 572, at the time when instructions were given for preparation of the will), the evidence bearing upon an assessment of capacity usually traverses a period of declining health on the part of the will-maker.
An inability to access medical, or other, records (by subpoena or otherwise) might be a factor in explanation of delay attending a challenge to a will or the pleading of a case in probate proceedings: Photios v Photios [2019] NSWCA 158 at [63] and [65].
It is generally in the interests of all persons with a bona fide interest in administration of a deceased estate that potentially competing wills, and information bearing upon their validity, be made available to all interested parties sooner rather than later. A countervailing consideration is a need to limit the extent to which "discovery processes" are used, unreasonably, to construct a speculative case. Hence, a need for case management of particular proceedings.

Discovery and production of testamentary instruments

Section 150 of the Probate and Administration Act 1898 NSW and section 54 of the Succession Act 2006 NSW provide similar, but not identical, statutory entitlements for the "discovery" and production of wills and other testamentary instruments.
PAA section 150 is in the following terms: "150 ORDER TO PRODUCE AN INSTRUMENT PURPORTING TO BE TESTAMENTARY (1) The Court may, on the application of any person, whether any proceedings are or are not pending in the Court with respect to any probate or administration, order any person to produce and bring into the registry any paper or writing, being or purporting to be testamentary, or otherwise material to the matter before the Court, which may be shown to be in the possession or under the control of such person. (2) If it is not shown that any such paper or writing is in the possession or under the control of such person, but it appears that there are reasonable grounds for believing that the person has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined in open Court or upon interrogatories respecting the same. (3) Such person shall be bound to answer such questions or interrogatories, and (if so ordered) to produce and bring in such paper or writing, and shall be subject to punishment for contempt in case of default in not attending or in not answering such questions or interrogatories, or not bringing in such paper or writing."
SA section 54 is in the following terms: "54 PERSONS ENTITLED TO INSPECT WILL OF DECEASED PERSON (1) In this section: "will" includes a revoked will, a document purporting to be a will, a part of a will and a copy of a will. (2) A person who has possession or control of a will of a deceased person must allow any one or more of the following persons to inspect or be given copies of the will (at their own expense): (a) any person named or referred to in the will, whether as a beneficiary or not, (b) any person named or referred to in an earlier will as a beneficiary of the deceased person, (c) the surviving spouse, de facto partner or issue of the deceased person, (d) a parent or guardian of the deceased person, (e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate, (f) any parent or guardian of a minor referred to in the will or who would be entitled to a share of the estate of the testator if the testator had died intestate, (g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person, (h) any person committed with the management of the deceased person's estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person, (i) any attorney under an enduring power of attorney made by the deceased person, (j) any person belonging to a class of persons prescribed by the regulations. Note : "De facto partner" is defined in section 21C of the Interpretation Act 1987. (3) A person who has possession or control of a will of a deceased person must produce it in a court if the court requires the person to do so."

Investigation of the Circumstances in which a Will was prepared and executed

The special public interest character of an application for admission of a will to probate (or for revocation of a grant made in respect of a will the validity of which is contested) manifests itself in the Court's concern that evidence about the circumstances in which a will was prepared and executed be available to the Court and, on an application of case management principles, all parties with an interest in the proceedings.
That concern may be illustrated by reference to three examples. A common denominator is the Court's power to control its own process (Azzi v Volvo [2006] NSWSC 283 at [4]), remembering that a grant of probate or administration is both an order of the Court and an instrument of title (Estate Kouvakis [2014] NSWSC 786 at [228]-[233]) the making or revocation of which is governed by the purpose served by the probate jurisdiction (ibid [211]-[217]).

Larke v Nugus

First, as discussed by the English Court of Appeal in Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033, a person involved in the preparation or execution of a will, or charged with responsibility as an executor for administration of a deceased estate, may have an obligation, when called upon to do so, to make timely disclosures about the circumstances in which a will was prepared or executed.
The Court of Appeal (constituted by Buckley, Shaw and Brandon LJJ), in a judgment delivered on 21 February 1979 but only reported in 2000, made the following observations (with editorial adaptation): "[In principle] when there is litigation about a will, every effort should be made by the executors to avoid costly litigation if that can be avoided and, when there are circumstances of suspicion attending the execution and making of a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will as to how the will came to be made. In a case of this kind, where suspicion attaches to the will because certain persons, who have only recently come into the life of the testatrix, take a substantial benefit under the will, then clearly the circumstances in which instructions for the will were given are of the utmost importance, and it is information as to that matter, even more than information as to the formalities of attestation, that is needed. [Per Brandon LJ at [2000] WTLR 1044 D-F]…"
These observations were made in response to a recommendation made by the Law Society of England and Wales to solicitors practising in that jurisdiction, first published in the Law Society's Gazette in September 1959, which (as extracted by the Court of Appeal at [2000] WTLR 1036) was in the following terms: "Where will in dispute. If the testator is dead, the solicitor must not disclose any information before probate is granted, except to the executors, without the consent of the executors. But this will not necessarily apply where a solicitor is asked to disclose information about a will which he has prepared and which is in dispute. Privilege cannot be claimed by one person claiming under a deceased testator's will as against another person having a similar claim in respect of matters communicated by the deceased to the solicitor during the lifetime of the deceased. The testator's solicitor could be compelled by the court under subpoena to answer questions directed to eliciting communications made to him by the testator in the course of preparing the will if put to him by either party …. Where a serious dispute arises as to the validity of a will, beyond the mere entering of a caveat, and the solicitor's knowledge makes him a material witness, then the solicitor should make available a statement of his evidence regarding the execution of the will and the circumstances surrounding it to anyone concerned in the proving or challenging of that will, whether or not the solicitor acted for those who were propounding the will".
In concurring with the observations of Brandon LJ (which Shaw LJ also did), Buckley LJ made the following additional observations (at [2000] WTLR 1046-1047): "I would only add [to the judgment of Brandon LJ] a few observations upon the recommendation of the Law Society, because that may be a matter of some general interest. The Law Society's recommendation in question is clearly concerned with problems arising out of the professional confidential relationship which has existed between the testator and his solicitor. In my view it is clear that the statement which the solicitor is recommended to make, where a serious dispute arises as to the validity of a will beyond the mere entering of a caveat and the solicitor's knowledge makes him a material witness, is a statement relating to such evidence as he himself can give. In my opinion it is also clear that the statement is not intended to be confined to matters concerned with the execution of the will in the narrow sense of the term 'execution'. In my judgement it should extend to all matters surrounding the making of a disputed will which are relevant to the questions in the action and, in my view, should consequently extend to the circumstances leading up to the preparation and making of the will. I fully agree with what [Brandon LJ] has said about the general principle which underlies the recommendation".
The Queensland Law Society Ethics Centre has issued to Queensland solicitors a "Guidance Note" entitled Guidance Note for Members - Disputed Wills (Contested Probate Matters) which embraces English probate practice referrable to Larke v Nugus in terms which include the following: In England and Wales a failure by a solicitor to respond to a Larke v Nugus enquiry can be a breach of professional duty. The Courts in England and Wales have made costs orders against solicitors who have failed to supply the information which has been sought under a request made within the … principle [stated by Brandon LJ in Larke v Nugus]. Practice pointers If you are the draftsperson of a will, you have knowledge that may be material in any dispute as to the will's validity. A person may apply to the Registrar of the Supreme Court [of Queensland] under Rule 637 of the Uniform Civil Procedure Rules requiring another person to attend the Court for examination in relation to any matter relevant to a proceeding under Chapter 15 - Probate and Administration. Part 8 of Chapter 15 is concerned with contested proceedings as to the validity of a will. One of the key principles of the Uniform Civil Procedure Rule[s] is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum expense (Rule 5 sub-rule 1). The giving by you of a statement of your evidence as to matters concerning the execution of the will and the surrounding circumstances leading up to the preparation and making of the will, means that the costs of a full hearing may be reduced. The provision of this information promptly may dispel suspicion and save costs. A letter may be received from another solicitor informing you that a Will prepared by you is disputed. That letter may ask you to provide information with respect to the circumstances of the making and execution of the will. You should provide a statement to anyone who has an interest in the dispute, whether or not you act for that person. This applies even if you act for the person seeking to prove the disputed will. The statement should cover at least the following matters: 1) how long you knew the deceased; 2) who introduced you to the deceased; 3) the date you received instructions from the deceased; 4) contemporaneous notes of all meetings and telephone calls, including an indication of where the meeting took place and who were present at the meeting; 5) how the instructions were expressed; 6) what indication the deceased gave that the deceased understood that he or she was making a will; 7) whether the deceased exhibited any signs of confusion or loss of memory; 8) whether and to what extent earlier wills were discussed and what attempts were made to discuss departures from the deceased's earlier will making practices; 9) what reasons were given for the making of any such departures; 10) how the provisions of the will were explained to the deceased; and 11) who, apart from the attesting witnesses were present at the execution of the will and where, when and how that took place. In summary your statement requires you to set out in detail: • the circumstances in which the client gave instructions for the will; and • the circumstances in which the will was executed. You should also give a copy of the contents of your will file if requested."
In my opinion, both the "principle" stated in Larke v Nugus and the "Practice Pointers" published in the Queensland "Guidance Note" (well-intentioned though they are) suffer from impediments to their implementation in practice: a. first, in the absence of any grant of representation in respect of a deceased estate and any agreement between all parties interested in an estate (assuming that they can be reliably identified), no person has clear authority to make disclosures about business of the deceased which (whether or not attended by an entitlement to legal professional privilege) might properly have been regarded by the deceased as confidential to him or her and his or her solicitor. b. secondly, a solicitor confronted with a "Larke v Nugus letter" might not be well placed to be able to identify whether the person on whose behalf the letter is written can fairly be said to have an interest in prospective proceedings for a grant of probate or administration in respect of a deceased's estate. c. thirdly, imposition on a solicitor of an "obligation" to provide a detailed statement about the circumstances in which a will was prepared, or executed, may be unreasonable unless proper arrangements are made for the solicitor to receive reasonable remuneration for preparation of such a statement. d. fourthly, if such a statement is to be prepared essentially in the public interest, it should be provided to the Court so as to be available to all interested parties (on an application of case management principles) if and when that may be appropriate, not merely made available to whoever might have seen fit to write a "Larke v Nugus letter". e. fifthly, if a solicitor is to be remunerated for preparation of a statement in response to a "Larke v Nugus letter" there needs to be a mechanism, not only to ensure that the solicitor who prepares a responsive statement receives reasonable remuneration for doing so, but for ensuring that such a solicitor does not charge, or receive, more than reasonable remuneration. f. sixthly, unless the process of provision by a solicitor of a statement about the circumstances in which a will was prepared, or executed, is subject to the control of the Court, demands for the provision of such a statement might be unreasonably made, or ignored, and the centre of focus might pass from the purposive character of the probate jurisdiction (to carry out a deceased person's duly expressed testamentary intentions, and to see that beneficiaries get what is due to them) to the self-interested pursuit of purely adversarial litigation.
Each of these problems can be addressed by orders made in exercise of the Court's case management powers.

The "Rule in Re Fuld"

Secondly, where, on an exercise by the Court of its probate jurisdiction, a question arises as to whether a will was or was not duly executed, a witness to execution of the will is regarded as a witness of the Court, with a consequence that, under the general law, an entitlement to legal professional privilege which might otherwise attach to documentation evidencing execution of a will does not preclude the Court, upon an exercise of its case management powers, from making an order that (to the extent, at least, that it deals with the subject of attestation and execution of the will) the document be produced to the Court for the purpose of assisting the Court in its search for the truth pertaining to due execution, or otherwise, of the will: Re Estate of Fuld, deceased [1965] P 405 at 409F-411B; Re Estate Pioerobon, deceased [2014] NSWSC 387; Boyce v Bunce [2015] NSWSC 1924 at [145] et seq.
The "Rule in Re Fuld" is reinforced by section 121 of the Evidence Act 1995 NSW, which provides that Division 1 of Part 3.10 of the Act (relating to the admissibility of evidence the subject of client legal privilege) "does not prevent the adducing of evidence relevant to a question concerning the intentions, or competence in law, of a client or party who has died."

Disclosure of Medical Evidence

Thirdly, as explained by Young JA in Zorbas v Sidiropoulous (No. 2) [2009] 197 at [95], lawyers for the parties in probate proceedings, "are obliged to assist the Court by putting before the Court all the expert [medical] material that they have collected, whether favourable or unfavourable, and not merely place before the Court those experts who have finally agreed with their client's case".
Young JA's observations are reinforced by the provisions of CPA s 56(3), which provides that "[a] party to civil proceedings is under a duty to assist the Court to further the overriding purpose [identified, in CPA s 56(1), as the facilitation of the just, quick and cheap resolution of the real issues in the proceedings] and to that effect to participate in the processes of the Court and to comply with directions and orders of the Court".

Production of a Solicitor's File and Provision of a Statement to the Court

Investigation of the circumstances in which a testamentary instrument was prepared and executed often leads to inquiries of a solicitor who attended to that process. Sometimes, but not always, that solicitor acts for a party to contested probate proceedings.
In the absence of a grant of probate or administration, no party generally has an entitlement to inspection of the client file, or other records, of the solicitor evidencing the process of preparation and execution of a will. In those circumstances, in the absence of agreement of all parties interested in the estate of the deceased, an order of the Court authorising disclosure of information which might otherwise be confidential to the estate may be required: (a) in aid of due administration of the estate; and (b) for protection of the solicitor from exposure to disciplinary consequences of an unauthorised disclosure.
Considerations of fairness in the conduct of contested proceedings, if not a need to preserve evidence, may justify a subpoena for production of the solicitor's "file" designed to bring it under the control of the Court and, on an application of case management principles, made available to all parties as soon as may be practical.
It may be in the interests of all persons interested in due administration of a deceased's estate that a solicitor's file, or other records, evidencing the preparation and execution of a will be produced to the Court so that they can be available to the Court and, in management of contested proceedings, the parties.
It is not uncommon for a judge of the Court, in an endeavour to cut through the congestion of disputation about subpoenas and notices to produce, to order that one or more of the parties to probate proceedings file and serve, within a specified time, an affidavit, or affidavits, deposing to the circumstances in which a will was prepared or executed.
Upon an application of case management principles, it is open to the Court, on the application of an interested party or on its own motion, to order that a solicitor (or other person) who prepared, or arranged for execution of, a will explain the circumstances in which the will was prepared and executed. Such an order might require the person to whom it is addressed to attend before the Court for examination: CPA section 68; Payoja Pty Ltd v 284 Bronte Road Developments Pty Ltd (2006) 67 NSWLR 1. However, in most instances, it is likely to be made, at least in the first instance, in the form of an order for the provision of an affidavit, or affidavits.
If such an order is made on the application of a party to proceedings, the Court may condition the making of an order upon an undertaking, or order, that ensures that party will, in the first instance, pay the reasonable costs of compliance with the Court's order, such costs to be assessed by the Court if not agreed. UCPR rule 33.11 (which empowers the Court to order that the issuing party pay the amount of any reasonable loss or expense incurred in complying with a subpoena) provides a template for such an undertaking. In an appropriate case, an undertaking for the payment of costs might be secured by an order for a payment into court.
In making such orders, the Court may require that any affidavit directed towards provision of an explanation of the circumstances in which a will was prepared, or executed, be filed in the Court, without service on any party, so as to ensure that the Court controls deployment of the affidavit, emphasising that it is in the nature of a report to the Court.
If an order (for the provision of an affidavit explaining the circumstances in which a will was prepared or executed) is made against a person who is not a party to the proceedings before the Court, or a solicitor for such a party, the Court should ordinarily reserve to the person to whom the order is addressed liberty to apply to the Court for an order that the order be discharged or varied. On such an application, a party who supports the order for disclosure may bear a forensic onus of persuading the Court that the order for disclosure should be maintained.
Prudentially, an application for an order (for the provision of an affidavit explaining the circumstances in which a will was prepared or executed) should be accompanied by an estimate of the reasonable costs of compliance with the order - agreed (if practicable) with the person required to comply with the order.
Subject to any contrary order by a judge, in the conduct of the Probate List an order for the provision of an affidavit explaining the circumstances in which a will was prepared or executed can be made by a registrar, not merely a judge of the Court. Such an order falls within the delegation of powers to registrars (effected by CPA section 13 and SC Del 10 Part 1 and Part 3 items 8, 9, and 11) by reference to CPA section 61 and UCPR rule 2.1 (a rule equivalent of CPA section 61), reinforced by CPA section 68 and the power (conferred by CPA section 86) to make orders on terms. These powers of a registrar are additional to those a registrar has under Part 78 of the Supreme Court Rules 1970 NSW ("the Probate Rules"), rule 94.

Production of Medical Records

As with a solicitor's file, it may be in the interests of all persons interested in the administration of a deceased estate that medical, or similar, records be produced to the Court so that they can be available to the Court and, in management of contested proceedings, the parties.
In recent days, those records may well include records of the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) relating to proceedings concerning questions about guardianship, financial management or a review of an enduring power of attorney or an appointment of an enduring guardian.

Case Management Considerations

Procedures for the disclosure of information in probate proceedings need to be flexible enough to accommodate a disclosure of information deemed timely in management of the particular case.
Deployment of the subpoena process is better calculated to achieve a just outcome in probate proceedings if subpoenas for the production of documents are issued, and notices to produce are served, on notice to all parties actively participating in proceedings.
A failure by a party (upon whose application a subpoena for the production of documents is issued, or who serves a notice to produce to court) to provide to all other parties reasonable notice of the fact of issuance of the subpoena, or service of the notice to produce to court, might be a factor to be taken into account in determining whether or not the subpoena process has been abused.
It might be taken into account, if not on an application to set aside a subpoena or a notice to produce, on an application for access to "subpoenaed documents" in the custody of the Court.
Although orders for access might be commonly made, they remain in the discretion of the Court; a discretion exercised by reference to case management principles. They are no mere formality.

The Subpoena Process

General principles governing the use of subpoenas (and, by analogy, notices to produce to court) are generally described by reference to the analysis of a "three step" process in Waind v Hill & National Employers Mutual Association Ltd [1978] 1 NSWLR 372 at 381-386.
The first step involves the production of documents to the Court in answer to a subpoena, or articulation of an objection to the subpoena and the Court's determination of any such objection: [1978] 1 NSWLR 381E and 381G-382F.
The second step involves the Court's determination of applications for access to documents (produced on subpoena) for the purpose of inspection: [1978] 1 NSWLR 381E-F and 382G-385E.
The third step involves the admission of subpoenaed documentation into evidence on the hearing of a claim for relief, or its rejection as inadmissible: [1978] 1 NSWLR 381F and 385F-386B.
At the time of the first step, a person who objects to a subpoena may move the Court to have it set aside on the ground that it was improperly issued or, in a number of ways, an abuse of the power to compel production of documents. It is at this stage (commonly by reference to Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN 215) that a subpoena is said to be liable to be set aside if it is used to obtain discovery or, because its terms are so wide, it is oppressive.
Small's case (at 38 SR (NSW) 575) is the classic source for a reference to "a fishing expedition" as an inappropriate deployment of a subpoena for the production of documents as a means of obtaining unauthorised discovery. Jordan CJ there made the following observations (with editorial adaptation): "In the absence of special circumstances, eg. Griebart v Morris [1920] 1 KB 659, a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of 'fishing', ie, endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all: Hennessy v Wright 24 QBD 445 at 448, or to discover the nature of the other side's evidence: Griebart v Morris [1920] 1 KB 659 at 666. Even if the documents are specified, a subpoena to a party will be set aside if abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant: Steele v Savory [1891] WN 195".
A more graphic description of a party on a "fishing expedition" can be found in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254: "…a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not."
At the time of the second step, subpoenaed documents are under the control of the Court, and access to them is determined by reference to what is necessary for there to be a proper determination of the proceedings. The crucial question in relation to the exercise of that discretion is whether documents have apparent relevance to the issues for determination.
At the third step the focus for attention is on the admissibility of documents tendered as evidence.
Particular care in the deployment of subpoenas and the like may be required in case management of an application (under Division 2 of Part 2.2 of the Succession Act 2006 NSW) for the authorisation of a "statutory will" on behalf of a person lacking testamentary capacity. Upon such an application a deployment of the Court's processes for the compulsory production of documents needs to be viewed through the prism of the incapacitated person and the protective nature of the jurisdiction conferred by the legislation which governs its exercise: Re MP's Statutory Will [2019] NSWSC 331 at [93]-[105].
Subject to one qualification, each motion presently before the Court for consideration must be viewed through the prism of "the first step", but anticipating at least an application in due course for access to any documents produced to the Court.
Attention here focuses upon whether the subpoena process is being used improperly for a form of "discovery". In particular, whether there is an identifiable, proper forensic purpose in support of the subpoenas and notices to produce under review; whether they are, in nature or scope, oppressive; and whether, on an application of case management principles, they should be allowed in aid of a just determination of real issues in dispute.
The qualification is that, in the second set of proceedings, documents have been produced to the Court by Concord Hospital in answer to the subpoena addressed to it. Those documents must be viewed through the prism of "the second step", informed by debate on "the first step" about proper forensic purpose and oppression. An abuse of the processes of the Court attending the issue and service of a subpoena for the production of documents cannot necessarily be taken to have been set right by a production of documents in answer to the subpoena: Cf, Owners-Strata Plan No 76902 v Roads and Maritime Services [2017] NSWSC 528 at [20]. Case management principles govern decision-making about access to "subpoenaed documents" in the custody of the Court no less than they apply to decision-making about the issue or setting aside of subpoenas: Rinehart v Rinehart [2018] NSWSC 1102 at [150]; Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [50].

General Observations

By means of subpoenas for the production of documents or a court order for the production of documents, the notice of motion filed by the defendant seeks two classes of documentation: 1. Firstly, medical records relating to treatment of the deceased during periods proximate to the date upon which she executed her contested (2014) will. 2. Secondly, the file of the plaintiff's solicitors (formerly solicitors for the deceased) relating to the preparation and execution of the contested will, including "any file notes, correspondence and other records including timesheet entries evidencing or recording attendance by, and instructions given by, the deceased and any other person".
On the hearing of the motion, the defendant supplemented it with an oral application for a direction that the plaintiff discloses the identity of the deceased's doctors and other medical professionals not known to the plaintiff. That application, in effect, was an application for leave to administer interrogatories, conceptually a form of "discovery of facts" as distinct from "discovery of documents".

The Defendant's Evidence and Written Submissions in Support of her Motion

The defendant's notice of motion was supported by an affidavit sworn by her solicitor on information and belief.
Based on that affidavit, the defendant, in her written submissions, advanced the following case (omitting footnotes): "[10] There are factual circumstances that point to a real possibility that the Deceased lacked testamentary capacity (and/or was affected by undue influence) at the time that she made the Putative 2014 Will in April 2014: (a) Since about August 2012 [the defendant] has been registered owner of a half share of [a residential property at Burwood], in respect of which she paid the Deceased the sum of $200,000. (b) On or about 10 July 2014, the Deceased instructed her solicitors that no money was paid by [the defendant] to the deceased, in relation to an acquiring a half share of the Burwood Property (as tenants in common) in 2012. (c) At that time in July 2014, most of the $200,000 was still held by the deceased. (d) In light of the above matters, it is reasonable to infer that, in July 2014, the deceased had no recollection of the $200,000 payment and did not fully appreciate the extent of her own savings. (e) The Putative 2014 will was a significant change from the testamentary intentions expressed in two wills made in 2009 (2009 Wills) and a codicil made in 2012 (Codicil). Unlike the 2009 Wills, including following the amendments made by the Codicil, the Putative 2014 Will made no provision for [the defendant] or her daughter… The 2014 Will is shorter and simpler than either of the 2009 wills. (f) The Putative 2014 Will was made when the Deceased was about 94 years old. (g) The Deceased was an impatient at Metro Rehab Hospital at the time the Putative 2014 Will was made. She had recently suffered a fall which necessitated surgery for broken bones at Concord Hospital. It is reasonable to suppose that a person of the deceased's age may have felt particularly vulnerable given the circumstances and effects of the fall and considering the apparent urgency associated with the making of the Putative 2014 Will. [11] The facts outlined above indicate that the subpoenas and section 68 order sought by [the defendant] have a legitimate forensic purpose: that is, it is reasonable to believe that the Documents sought 'have the capacity to throw some light on the issues in the proceedings'. [12] It would be inefficient to require [the defendant] to plead her Defence now without the benefit of the Documents, having regard to the possibility that the Defence may require significant amendment after the Documents are obtained. This would result in duplication of effort in relation to the Defence and increased costs, contrary to the overriding purpose in section 56 of the CPA. [13] The making of the orders sought by [the defendant] is likely to assist in defining the issues in dispute and thereby further the overriding purpose in section 56 of the CPA: (a) If the Documents are produced to [the defendant] and are found to provide no reasonable basis to assert a lack of testamentary capacity and/or undue influence, the scope of any dispute in relation to the grant of probate is likely to be greatly confined. Indeed, it is possible that the information contained in the Documents may bring the probate dispute to an end. (b) However, if [the defendant] does not obtain access to the Documents at this time, she will be greatly limited in her ability to plead claims in relation to testamentary capacity and/or undue influence, as she will not have access to any material information that may be in the Documents. [14] The question whether the Deceased lacked testamentary capacity is one that should be informed by a review of the deceased's medical records. Depending on the contents of those medical records, [the defendant] may also need to obtain further assistance from a geriatrician or other suitably qualified medical practitioner. [15] The file of the deceased's solicitors, who are [the plaintiff's] solicitors, is likely to be relevant both to testamentary capacity and undue influence, having regard to the circumstances in which the Putative 2014 Will was executed. In particular, [the defendant] seeks to understand whether the deceased was acting under a disorder of the mind that poisoned her affections against [the defendant], perverted her sense of right or prevented the exercise of her natural faculties'.

Analysis

In the absence of elaboration of what the defendant anticipates may be her allegation of "undue influence", I assume that she means "probate undue influence"; that is to say, "coercion" as explained in Winter v Crichton (1991) 23 NSWLR 116 at 121-122. A glance at the will immediately suggests an impediment to such an allegation; the deceased's execution of the will was attested by a solicitor experienced in the practice of succession law. Anything is possible, but an allegation that execution of the will was procured by coercion might be thought, in that context, to be entirely speculative and to have doubtful prospects of success.
An allegation of "equitable undue influence" might be open (Bridgewater v Leahy (1998) 194 CLR 457 at [62]-[63]; Boyce v Bunce [2015] NSWSC 1924 at [33] et seq) but no factual foundation for any such possibility has been suggested. The highest the defendant's submissions go towards an allegation of "equitable undue influence" is a passing footnote citation of Thorne v Kennedy (2017) 263 CLR 85 at [30]-[36], with a suggestion that the same principles might be applied in the context of probate law. That submission does incomplete justice to the different perspectives of the equitable and probate jurisdictions of the Court.
A fundamental flaw in the defendant's submissions is a failure to appreciate that proceedings on an application for probate are generally governed by a process of pleading (directed towards identification of real issues in dispute) before any process of "discovery" or "interrogatories". This is implicit in Practice Note SC Eq 11, but it has a broader provenance. Pleadings govern discovery, not the reverse.
A danger of allowing proceedings to be driven by "discovery" procedures absent a closure of pleadings is that they lack direction for want of identification of real questions in dispute, and "discovery" processes can easily become captive to a perceived, open-ended necessity for further information. An illustration of this tendency is found in the defendant's speculation that assistance might be sought from a geriatrician before any defence is filed.
The affidavit of the defendant's solicitor in support of the motion suggests that, at this stage of the proceedings and subject to review in light of further information which may come to hand, the defendant has a sufficient basis for the filing of a defence challenging the validity of the contested 2014 will on the ground of a want of testamentary capacity. If so, a defence should be filed limited to that ground of challenge. A need for such a defence to be amended should not be anticipated, or feared.
I note, without pausing, that correspondence between the parties' respective solicitors foreshadows the possibility of a challenge by the plaintiff to the propriety of the transaction identified in paragraph 10(a) of the defendant's written submissions. All the more reason to keep the probate proceedings within reasonable bounds. The deceased's estate needs an authorised representative if inter vivos transactions involving the deceased are to be the subject of litigation.
Presentation of the defendant's case in support of the motion invites an apprehension that a principal object of the motion is to obtain "discovery" (in classic terminology, by way of a "fishing expedition") to explore potential for an allegation that execution of the contested will was procured by undue influence, an allegation on which the defendant bears the onus of proof.
Upon an assumption that the defendant files a defence alleging a want of testamentary capacity at the time of execution of the contested will, and a cross claim seeking a grant of administration in respect of an earlier testamentary instrument, a grant of leave to issue subpoenas for production of medical records, and for production of the deceased's solicitors' file, may be appropriate.
Practice Note SC Eq 11 requires that, save in exceptional circumstances, parties must serve their affidavits in the principal proceedings before the Court will make an order for disclosure of documents. Some flexibility on this may be required in preparation of probate proceedings for a hearing.
If permitted (in accordance with UCPR rule 31.19 and Practice Note SC Eq 5), the evidence of a medico-legal expert is likely to require access to contemporaneous medical records, as well as lay affidavits to be relied upon at a final hearing. As a general rule (subject to adaptation in each case, as the nature of the case may require) parties should expect to be required to file their pleadings, and to serve their lay affidavits, before subpoena procedures are engaged unless they agree upon an earlier issue of subpoenas to bring within the control of the Court documents of common interest (usually, wills; medical reports; and solicitors' will files) to abide the Court's case management decisions about access.
At this stage of the proceedings, the defendant has no proper forensic purpose in seeking, in advance of pleading, the issue of subpoenas (or an equivalent order under CPA section 68) for the production of: 1. medical records in aid of preparation of expert evidence; or 2. evidence in support of a speculative allegation of undue influence.
Nor is it appropriate, at this stage of the proceedings, to allow the defendant, in effect, by an order under CPA section 61, to administer interrogatories directed to identification of all the deceased's treating doctors and other medical professionals.
If the proceedings are not to be diverted by undue focus upon discovery-type procedures, the defendant should be required, without further delay, to plead to the plaintiff's statement of claim.
If the defendant files and serves a defence placing testamentary capacity in issue, she can direct a written request to the plaintiff which, if not responded to constructively by the plaintiff, can be the subject of a direction for the provision of the information sought. In the meantime, nothing is required. That does not mean that the plaintiff should not engage constructively with the defendant, only that I am not minded to make a formal order compelling the provision of information in advance of the defendant filing a pleading.

Proposed Orders

Accordingly, subject to allowing the parties an opportunity to be heard as to necessary directions and questions of costs, I propose to make the following orders: 1. ORDER that the defendant's notice of motion filed on 9 January 2019 be dismissed. 2. ORDER that the defendant's ancillary application for an order that the plaintiff provide to her the names of doctors or medical professionals who treated the deceased be dismissed. 3. ORDER that the defendant pay the plaintiff's costs of the motion, and the ancillary application, on the ordinary basis. 4. ORDER that the defendant file and serve, within a specified time, such Defence and Cross Claim as she proposes to file in the proceedings. 5. ORDER that the proceedings be listed before the Registrar on a specified date for directions.
If the defendant: (a) at least, files a defence challenging the validity of the contested 2014 will on the ground of a want of testamentary capacity, and a cross claim seeking a grant of administration in respect of an earlier testamentary instrument; and (b) serves her lay affidavits in the principal proceedings, I anticipate that it would be appropriate for the defendant to be granted leave to issue subpoenas for the production of the deceased's medical records and the file of her solicitors relating to the preparation and execution of the contested will.
It would also be appropriate if the parties were to agree on an earlier engagement with the subpoena process.

APPLICATION TO SET ASIDE SUBPOENAS AND NOTICES TO PRODUCE: Estate Soulos

General Observations

The plaintiffs' notice of motion to set aside the defendant's subpoenas and notices to produce is underpinned by a concern that the defendant is seeking to agitate issues not genuinely in dispute in the principal proceedings. Once again, identification of real issues in dispute has central importance.
There is but a lingering presence of Practice Note SC Eq 11 because, although the defendant appears to have served subpoenas and notices to produce before serving all his lay evidence, in written submissions dated 8 March 2019 he recorded an understanding that all lay evidence had, by that time, been served. As had a full set of pleadings.
The defendant's pleadings are unusual in that, by a cross claim, he invites the Court, inter alia, to pass over all the known wills of the deceased (some 15 or 16 of them, most if not all, prepared and executed with the assistance of a solicitor) so as to find that the deceased died intestate. He also advances, on an alternative claim for relief, an inconsistent claim for one of the several allegedly invalid wills to be admitted to probate, backed up by a claim for family provision relief. By his cross claim, he appears to have assumed an onus of proving that all the wills not propounded by any party (but said by the plaintiffs to have been valid) were invalid for a want of knowledge and approval on the part of the deceased as to their contents.
This idiosyncratic approach may be a legacy of an interlocutory challenge by the plaintiffs (not finally determined by the Court) to the defendant's standing to oppose admission of the deceased's last (2017) will to probate. On one view, the defendant lacks standing to challenge that will because he does, or may do, better under it than under the 2015 will he propounds.
The plaintiffs' apprehension that the defendant's subpoenas and notices to produce go beyond what is necessary for the adjudication of real questions in dispute is not without foundation.
On 9 July 2018 the defendant commenced the process of definition of issues for the Court's determination when he filed a caveat in the following terms (with emphasis added): "CAVEAT I require that No grant of probate or reseal be made in the estate of Rene Soulos, late of Strathfield, homemaker, who died on 27 January 2018 without prior notice to me, on the grounds that the testator lacked testamentary capacity to make the will dated 13 March 2017, and/or the will dated 13 March 2017 was made as a result of undue influence. My interest is: as a beneficiary in the will of the deceased dated 13 March 2017, and as a beneficiary in prior wills of the deceased, and a person entitled on intestacy in the estate".
On an application by the plaintiffs for an order that the caveat cease to be in force, on 3 December 2018 I made an order that the defendant file and serve short written submissions setting forth, inter alia, the grounds upon which he challenges the validity of any wills under challenge by him.
On 3 December 2018 I also made an order that no access be granted to any party to any documents produced on subpoena pending further order of the Court.
On 6 December 2018 the defendant filed written submissions in which he recorded that he challenged the wills of the deceased respectively dated 8 February 2017 and 13 March 2017 on the grounds of: (a) a lack of testamentary capacity; and (b) a lack of knowledge and approval. Those submissions made no reference to a challenge to the validity of any other will of the deceased or to any challenge on the ground of undue influence.
On 10 December 2018 I recorded in a formal notation that the plaintiffs propounded the deceased's will dated 13 March 2017 and the defendant propounded the deceased's will dated 5 November 2015. The defendant did not at that time plainly advance a contention that all of the deceased's wills were invalid for a want of knowledge and approval. Nor did he foreshadow a contention that, despite a multitude of wills executed by the deceased, she must be taken to have died intestate.
The case management directions I gave consequentially upon that notation included: (a) an order that the proceedings proceed by way of pleadings; (b) an order, made by consent, that the plaintiffs be granted special letters of administration pending the final determination of the proceedings; (c) an order that the plaintiffs file and serve an affidavit or affidavits deposing to the facts and circumstances relating to preparation and execution of the deceased's will dated 13 March 2017; and (d) an order that the defendant file and serve an affidavit or affidavits deposing to the facts and circumstances material to each ground upon which he challenges the validity of the wills respectively dated 8 February 2017 and 13 March 2017.
The plaintiffs filed their statement of claim (seeking a grant of probate of the deceased's will dated 13 March 2017) on 18 December 2018. On 16 January 2019 the defendant filed a defence (which, as foreshadowed, challenged the validity of the will dated 13 March 2017 on the grounds of a want of testamentary capacity and a want of knowledge and approval), together with a statement of cross claim which went beyond the foreshadowed claim that the deceased's will dated 5 November 2015 should be admitted to probate. It went beyond the foreshadowed claim to a grant by alleging that: (a) all of the deceased's wills were made without her knowledge and approval; and (b) if the deceased did not die intestate, he should be granted family provision relief.
The defendant's statement of cross claim may be technically embarrassing insofar as it alleges (albeit in the alternative) that the deceased's will dated 5 November 2015 is invalid because of a want of knowledge and approval and that the same will should be admitted to probate, implicitly on the basis that the deceased executed it knowing and approving its contents. The rules of pleading (in particular, UCPR r 14.18) permit allegations of fact, and claims for relief, to be made in the alternative: Photios v Photios [2019] NSWCA 158 at [72]. However, they do not countenance a pleading that has a tendency to cause prejudice, embarrassment or delay or is otherwise an abuse of process. A pleading with either of those qualities is liable to be struck out: UCPR r 14.28.
No application has been made to strike out the statement of cross claim, or for its summary dismissal, in whole or part, but the plaintiffs contend that there can be no real issue as to the validity of the deceased's pre-2017 wills. There is merit in this contention, not only in light of the defendant's inconsistent pleading relating to the deceased's will dated 5 November 2015, but also having regard to: evidence of the deceased's solicitor about the course of his dealings with the deceased, in English, over several years; the number of wills challenged by the defendant in his cross-claim; the length of time over which those wills were prepared; and imprecision in the defendant's allegation of a want of knowledge and approval effecting all of the deceased's known wills.
The defendant's statement of cross claim particularised his general allegation of a want of knowledge and approval of any will in the following terms (which are repeated in the defence, directed specifically to the will dated 13 March 2017), with editorial adaptation: "(a) The deceased's first language was Greek, she had a demonstrated lack of ability to read complex material in English, and the wills contained no translation clause; (b) The terms and tenor of the wills were sufficiently complicated such that the deceased could not readily know and approve their contents and that as an unsophisticated person she could not readily appreciate that which she signed; (c) The deceased had material hearing difficulties; (d) The deceased did not appreciate the nature and extent of her property including the respective rights of management and other entitlements relating to the classes of shares [in a family company]. (e) The deceased did not comprehend and appreciate the claims to which she ought to give effect, including that the 3000 "B" class shares in [the family company] were held by, or on the half of, her son [the defendant], or alternatively if the beneficial ownership had been duly transferred, he had not been paid for them; and (f) In purporting to describe her property in the 13 March 2017 will, the deceased erred as follows: (i) the statement in clause 14(a) of the 13 March 2017 will is incorrect in respect of the identified transferees of [a designated strata title property] when, in fact in or about January 2016 the deceased had already transferred that land to [the third plaintiff] only; and (ii) in the premises of paragraph 4.f.1, the statement in clause 14 (a) of the 13 March 2017 will appears to be incorrect with respect to the recipients of vendor finance for the purchase of [the strata title property]".
These particulars hint at an unarticulated challenge to the deceased's testamentary capacity to make any will. They allude to the first three elements of testamentary capacity classically stated by Banks v Goodfellow (1870) LR 5 QB 549 at 565: "It is essential to the exercise of [the power to make a will] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; [and] shall be able to comprehend and appreciate the claims to which he ought to give effect. …"
The defendant's "particulars" of a want of knowledge and approval cannot be taken, by sleight of hand, to have the effect of advancing an allegation of testamentary incapacity Particulars cannot rise above the pleading they particularise.
In conformity with directions given on 10 December 2018, the second plaintiff (a principal in the firm of solicitors acting for the plaintiffs in these proceedings) on 15 February 2019 swore an affidavit in which (repeating statements in an earlier affidavit sworn by him on 8 October 2018) he deposed to the circumstances in which the will dated 13 March to 2017 was prepared and executed. He also deposed to having acted for the deceased in the preparation and execution of 15 wills (including the will dated 5 November 2015) in the period between 2003 to 2017 inclusive.
In his earlier affidavit the third plaintiff deposed to the following (in paragraph 7): "At no stage [in the period between 2003 to 2017] did I have any concerns about [the deceased's] capacity to understand either the contents of her will, or what I was telling her in English about her various (and many) draft wills. While English was not her first language, [the deceased] communicated perfectly well in English. If there were aspects of her will she was not happy with, she would give me clear instructions to amend them or we would agree to meet again".
An oddity of the defendant's subpoenas and notices to produce, which suggests a consciousness of a need to avoid oppression, is that they seek the production of documents limited to the period between 2003 - 2017, though the defendant's pleadings challenge wills of the deceased going back to 1995.

The Defendant's Hospital Records Subpoena

The defendant's subpoena addressed to Concord Hospital sought production of the following class of documents: "In respect of admissions of the patient Irene 'Rene' Soulos ('the deceased'), date of birth 27 November 1999, copies of all: a) attendance and consultation notes; b) observation charts; c) records of diagnoses and medications prescribed with respect to pain experienced by the deceased; d) reports; and e) hospital administration and discharge summaries, to the extent dated or recorded in the period from 7 December 2003 to 27 January 2018".
On the defendant's pleadings, I am not satisfied that there is any proper forensic purpose in the defendant having access to any hospital records bearing upon the deceased's medical condition otherwise than such as might bear upon the wills dated 8 February 2017 and 13 March 2017. If there is to be any greater access to subsequent materials, the defendant's pleadings need to be put on a more rational foundation. As they stand, the case the defendant seeks to advance on his cross-claim appears to have, in its inconsistency at least, a tendency to cause prejudice, embarrassment or delay in the proceedings.
The subpoena to the Hospital was filed on 1 November 2018, fully one month before the defendant filed written submissions which implicitly confined his testamentary capacity case to the wills dated 8 February 2017 and 13 March 2017. The defendant's statement of cross claim implicitly asserts that the deceased had capacity to make the will dated 5 November 2015, which (on an alternative case) he seeks to have admitted to probate.
I have considered the possibility that access to the Hospital records could be forensically relevant to the third, fourth and fifth particulars to the general allegation of a want of knowledge and approval set out in the defendant's cross-claim. The defendant submits that the state of the deceased's health from time to time could be relevant to whether she had, or did not have, knowledge and approval of the contents of complex (albeit, to some extent, formulaic) wills. That contention is not without force, but it does not necessarily follow. Nor does it dispel an underlying concern that, by expansive particulars, the defendant seeks to fish for game larger than his pleaded case.
I am not satisfied that the Hospital records are or may be relevant or that, in the interests of justice, they should be made available for inspection by the defendant save insofar as they may bear upon the question of the deceased's testamentary capacity to make her 2017 wills. The defendant has filed affidavits bearing upon the question of knowledge and approval. He has no obvious need for access to Hospital records created before the date of the deceased's 2015 will he propounds, or thereabouts. He will have, I anticipate, an opportunity to cross examine the second plaintiff (the deceased's solicitor) at a final hearing. In fairness to the plaintiffs, and beneficiaries under the 2017 wills, he cannot fudge his generalised allegation of a want of knowledge and approval, referable to so many wills over so long a period of time, by hoping to bolster it with a hint of testamentary incapacity via medical records. In light of his pleadings, as particularised, any application for unrestricted access to the Hospital records appears, at present, to be a "fishing expedition" beyond the reasonable.
Given the state of the defendant's pleadings, I propose to defer making any decision about his access to the Hospital records until clarification of the case he seeks to make on his pleadings, including what he says about: (a) the validity of the deceased's will dated 5 November 2015; (b) the location of the onus of proof vis-à-vis wills of the deceased predating the will dated 5 November 2015; and (c) the nature and scope of the particularised allegations of the want of knowledge and approval.

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

The defendant's subpoena for production addressed to the solicitors for the deceased (presently also the solicitors for the plaintiffs) seeks production of the following classes of documents (with editorial adaptation): "1. All documents created or dated on or after 7 December 2003 and before 27 January 2018 evidencing: a) file notes taken by the second plaintiff… (or his agent); b) records of questions, answers, instructions and observations; c) records of other communications or interactions with or from [the deceased]; or d) records of interactions and communications with or from the first or third plaintiffs, in connection with any will or proposed will or testamentary document of [the deceased], including, as recorded in relation to the documents purporting to be [wills of the deceased, respectively dated 4 June 2008, 11 June 2010, 12 May 2011, 18 May 2011, 13 December 2012, 22 March 2013, 30 January 2015, 11 March 2015, 20 October 2015, 5 November 2015, 8 February 2017 and 13 March 2017]. 2. All files relating to any will or codicil of [the deceased] in the period in paragraph 1. 3. Copies of the foregoing where the originals are not held and produced".
The notices to produce to court respectively served on each of the three plaintiffs are formulaic in the sense that they seek production of the same classes of documents sought in the subpoena addressed to the solicitors.
In light of the affidavits sworn by the second plaintiff, as the solicitor who supervised the preparation and execution of the deceased's wills in the period identified in the subpoena, there is little, if any, forensic purpose in any of the notices to produce. In essence, the defendant seeks production of the solicitors' file, or files, relating to preparation of the deceased's wills dated 4 June 2008 or thereafter.
On that basis, I propose to allow the subpoena to stand, but to order that the notices to produce be set aside.
If and to the extent the solicitors have file records relating to the deceased's wills answering the description of the subpoena, those records can be (if need be) produced comparatively easily. In the circumstances of the case, the notice to produce directed to the second plaintiff is simply repetitive at best; there is no suggestion that a notice to produce, as distinct from a subpoena, is required for evidentiary purposes.
I propose to order that the notices to produce directed to the first and third plaintiffs be set aside as oppressive, having regard to the length of the period in respect of which documents are required to be produced, and to the fact that preparation and execution of the deceased's wills was supervised by the solicitors.
I propose to defer making any order referrable to the subpoena addressed to the solicitors for the deceased until the status of the defendant's pleadings, and the case he seeks to make, is clarified. There is no suggestion that a production of subpoenaed records is necessary to preserve them against destruction pending further order of the Court.

Clarification of the Defendant's Pleadings/Case

The proper management of the principal proceedings requires that the state of the defendant's pleadings, and the case for which he contends by reference to them, be clarified before the defendant is allowed further deployment of the subpoena process.
In order to allow this to be done, I propose, by order of the Court, to call upon the defendant to show cause why his pleadings (and, especially, his statement of cross-claim) should not be struck out or otherwise summarily determined. That is likely to involve consideration, inter alia, of: (a) whether the pleadings are, in whole or part, an abuse of process (Photios v Photios [2019] NSWCA 158); and (b) if not, whether case management orders are nevertheless required to ensure the conduct of a fair and orderly hearing of the parties' competing claims
If the defendant maintains his contentions about the validity of the wills pre-dating the will dated 5 November 2015, and if he is held entitled to do so, the interests of justice might best be served by an order for the separate, preliminary determination of the question whether the deceased's last three wills (assessed successively, in reverse chronological order) were valid.
The interests of justice might, in any event, require that an order be made for the separate, later determination of the defendant's application for family provision relief.
The defendant's forensic strategy appears to bundle up a broad mix of amorphous allegations, extending over a lifetime, in the expectation of securing an advantage at a final hearing in the character of a roving commission with few constraints upon what is relevant and what is not.
If orders are made for the separate determination of questions, in so many staged hearings as may be necessary for an orderly and fair determination of all questions in dispute, they might have implications for the extent to which documents should be brought into court on subpoena and accessed at this stage of what could be protracted proceedings.
If the defendant maintains his cross-claim in all its dimensions, and is held entitled to do so, considerations of costs might also loom large.

Proposed Orders

Subject to allowing the parties an opportunity to be heard as to necessary directions and questions of costs, I propose to make orders to the following effect: 1. ORDER that the three notices to produce to court dated 29 October 2018, respectively addressed to each plaintiff, be set aside. 2. ORDER that no access be granted to any party to documents produced on subpoena by Concord Repatriation General Hospital pending further order of the Court. 3. ORDER that the plaintiffs' notice of motion filed 14 November 2018 otherwise be adjourned pending consideration of the defendant's pleadings or further order. 4. ORDER that the defendant show cause why his pleadings should not be struck out, or otherwise summarily determined, as an abuse of the process of the Court. 5. ORDER that the proceedings be listed before Lindsay J, on a date to be fixed, for further hearing of the plaintiff's motion and directions generally.

Amendments 24 July 2019 - corrected paragraph numbering and formatting. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2019

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