Boyce v Bunce

Supreme Court of NSW|2015-06-17|Before: Lindsay J

rtsch (1993) 35 NSWLR 631 at 634B-C Gordon v Hilton (NSWSC, 13 October 1995, unrep Grant v Downs (1976) 135 CLR 674 at 689 Hall v Hall (1868) 1 P & D 481 Hall v Hall (1868) LR 1 P&D 481 Harris v Jenkins (1922) 31 CLR 341 at 367-368 Hill v Van Erp (1997) 188 CLR 159 Horton v Jones (1935) 53 CLR 475 Huguenin v Baseley (1807) 14 Ves Jun 273 at 300; 33ER 526 at 536 Hunter and New England Area Health Services v A by his Tutor T (2009) 74 NSWLR 88 In the Estate of Leona Johnson (Deceased) [2015] SASC 51 at [11] In the Goods of Loveday [1900] P 154 at 156 John v Rees [1970] Ch 345 at 369-374 Johnson v Buttress (1936) 56 CLR 113 at 134-136 Bank of NSW v Rogers (1941) 65 CLR 42 at 54 and 85) Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 435E-436C Miller v Jones [1999] NSWCA 467 at [28]. Nock v Austin (1918) 25 CLR 519 Osborne v Smith (1960) 105 CLR 153 at 158-159 Parfitt v Lawless (1872) LR 2 P&D 462 at 468-470 Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [263]-[277] and [308]-[314] Ramcoumarsingh v Adminstrator General [2002] UPC 67; [2002] All ER (D) 259 (Dec) Re Eger; Heilprin v Eger (Powell J, 4 February 1985) BC 8500997 at 72-74 Re Estate of Fuld, Deceased [1965] P405 at 409F-411B Re Estate of Hodges, Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 709D-710B Re Estate Pierobon [2014] NSWSC 387 at [49]-[50], [62] Revie v Druitt [2005] NSWSC 902 at [54] and [2005] NSWSC 965 at [14]) Ridge v Rowden; Estate of Dowling (Santow J, 10 April 1996) BC 9601342 at 39-46. Ritz Hotel Ltd v Charles of the Ritz Ltd [No 22] (1988) 14 NSWLR 132 at 133F-134A Shorten v Shorten (No 2) [2003] NSWCA 60 at [14]-[27] Shovelar v Lane [2011] EWCA Civ 82; [2012] 1 WLR 637; [2011] 4 All ER 669 at [44] Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526 at [28]. Spoehr v Health Services Charitable Gifts Board [2014] SASC 171; 121 SASR 174 at [38] State of NSW v Jackson [2007] NSWCA 279 at [38], [42]-[43], [52]-[55] and [60]-[61] Tobin v Ezekiel (2012) 83 NSWLR 757 at 770 [43]-774 [55] Trade Practices Commission v Ampol Petrol (Victoria) Pty Limited (1994) 53 FCR 578 at 584A-585D and 586B Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 1365; 14 BPR 26,867 at [63]-[64] Tyrrell v Painton [1894] P 151 at 156, 157 and 159-160 Waind v Hill [1978] 1 NSWLR 372 at 381E-386B Walton v Gardiner (1993) 177 CLR 378 at 392-393. Williams v Spautz (1992) 174 CLR 509 at 526-527 Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83 Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121-122 Wintle v Nye [1959] 1WLR 284 Woodley-Page v Symons (1987) 217 ALR 25 at 35 Woolf v Snipe (1933) 48 CLR 677 at 678-679 Texts Cited: Enquiry into Succession Laws, paragraphs W11-W12 Fiona Burns, "Elders and Testamentary Influence in Australia" (2005) 28 UNSW Law Journal 1 FW Maitland, Equity: a course of lectures (Cambridge University Press, revised, 1936), page 17 Meagher, Gummow and Lehane's Equity: Doctrines and Remedies, JD Heydon, MJ Leeming and PG Turner (eds), (Lexis Nexis Butterworths, Australia, 5th ed, 2015), paragraph [15-040] NSW Law Reform Commission, Report 47 (1986) - Community Law Reform Programme: Wills -Execution and Revocation, paragraphs [8.31]-[8.35) Pauline Ridge "Equitable Undue Influence and Wills" (2004) 120 Law Quarterly Review 617 PW Young, C Croft and ML Smith, On Equity (Law Book Co, 2009), paragraph [1.100] Succession Law and Practice NSW, Mason and Handler, (Lexus Nexus Butterworths), paragraph [6085] The Law of Succession in NSW, GLC Certoma (Thomson Reuters, Sydney, 4th ed, 2010), paragraph [6.60], page 95 Wills, Probate and Administration Law in NSW, RS Geddes, CJR Rowland and PS Studdert (LBC, Sydney, 1996), paragraph [40.65], page 295 Category: Procedural and other rulings Parties: Plaintiff: Philip Leslie Boyce Defendant: Marguerite Anne Bunce Representation: Counsel: Plaintiff: M Gorrick Defendant: PM Barham

Solicitors: Plaintiff: Teece Hodgson & Ward Defendant: Fraser Clancy Lawyers File Number(s): 2012/00261882

INTRODUCTION

The facts of this case, and the way it has been conducted by the parties, invite consideration by the Court, at an interlocutory level, of: 1. the principles enunciated in the Re Estate of Fuld, Deceased [1965] P 405 at 409F-411B, which inform decisions of the Court about the availability of statements made by an attesting witness to the execution of a will; and 2. observations made by the High Court of Australia in Bridgewater v Leahy (1998) 194 CLR 457 at 474 [62] - 475 [63] about the operation, and potential interaction, of the differing concepts of "undue influence" in play in the probate and equity jurisdictions of the Court.
Upon a consideration of orders to be made (in accordance with case management principles embodied in Part 6 of the Civil Procedure Act 2005 NSW ("CPA"), informed by customary practice in the exercise of probate jurisdiction) in preparation of the proceedings for a final hearing, each of these topics requires a focus upon: 1. the purpose served by an exercise of the Court's probate jurisdiction; 2. what orders may be required of the Court, in service of that purpose, to effect a just determination of the proceedings (CPA s57(1)), facilitating a just, quick and cheap resolution of the real issues in the proceedings (CPA s56(1)); and 3. the necessity for those issues to be properly pleaded and particularised, rather than left to be inferred from evidence unconstrained by formal identification.
By allowing disputes about demands for the compulsory production of documents (in modern parlance, "discovery") to be litigated without a clear identification of "real issues" in their pleadings, the parties to the proceedings have allowed the discovery process to impede, rather than to progress, preparations for a final hearing. Case management imperatives require that fresh attention be focussed on the pleadings in priority to discovery.

PROCEDURAL CONTEXT

By an amended notice of motion filed in a contested probate suit, the plaintiff (Mr PL Boyce, formerly the solicitor for the testatrix, and now the propounder, in the alternative, of two disputed wills) applies for: 1. orders to the effect that documents produced to the Court by an attesting witness to the disputed wills, Ms MA Hatton (MAH), on a subpoena issued at the request of the defendant, and inspected by the defendant's side of the record, be delivered up to the plaintiff insofar as the plaintiff asserts a claim of legal professional privilege over them; and 2. an order that three notices to produce (respectively dated 16 February 2015, 25 March 2015 and 28 April 2015) served on the plaintiff by the defendant, consequent upon the defendant's inspection of the allegedly privileged documents produced to the Court, be set aside in whole or part.
The defendant, Ms MA Bunce, is the only surviving member (an adult daughter) of the family of the testatrix.
The disputed wills favour the plaintiff's personal interests over those of the defendant.
Each of the disputed wills is regular in form: that is to say, it was duly executed in accordance with the formal requirements of the Succession Act 2006 NSW, section 6. There is no dispute about this. Their formal validity is conceded. Their essential validity is not.
The defendant contends that each will is invalid: (a) for a want of testamentary capacity in the testatrix; (b) because it was executed in suspicious circumstances serving to rebut any presumption of knowledge and approval on the part of the testatrix arising from its form; and (c) its execution was procured by an exercise of undue influence on the part of the plaintiff and others acting with him.
In the principal proceedings, the plaintiff's application for a grant of probate of the disputed wills has been met by the a cross-claim by the defendant seeking: 1. an order that the defendant be granted probate of an earlier, third will that makes provision for her without any provision for the plaintiff or any interest associated with the plaintiff; and 2. in the alternative, an order for family provision relief under chapter 3 of the Succession Act 2006 NSW.
The parties accept that the earlier, third will was valid as and when made, and that its present validity depends solely upon whether it was revoked by one or the other of the later, disputed wills.
The plaintiff's application for documents to be "re-privileged" (to use a common colloquial expression) turns upon: 1. whether, having regard to the so-called "rule in Re Fuld", any privilege ever attached to the disputed documents in favour of the plaintiff; and/or 2. if it did, whether (in accordance with principles enunciated in Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303) the plaintiff ought to be granted orders designed to enforce the entitlement to confidentiality inherent in his claim of privilege.
The expression "the rule in Re Fuld" is a shorthand reference to principles enunciated in the Re Estate of Fuld, Deceased [1965] P 405 at 409F-411B by reference to the idea that (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.
Re Fuld is authority for the proposition that, consequent upon characterisation of such a witness as "a witness of the Court": 1. any party properly before the Court, including the party calling the witness to give evidence in the proceedings, is entitled to cross examine the witness insofar as his or her evidence deals with execution or attestation of the will; 2. the Court, if it thinks fit, is entitled to see, and to require the witness to produce, earlier statements that he or she may have made dealing with the question of execution; and 3. under the general law, an entitlement to legal professional privilege which might otherwise attach to such documentation does not preclude the Court from making an order that (to the extent that it deals with the subject of attestation and execution of the will) the documentation 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.
The reasoning in Re Fuld has been routinely applied in NSW, as illustrated by standard texts: Mason and Handler, Succession Law and Practice NSW (Lexus Nexus Butterworths), paragraph [6085]; RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in NSW (LBC, Sydney, 1996), paragraph [40.65], page 295; GL Certoma, The Law of Succession in NSW (Thomson Reuters, Sydney, 4th ed, 2010), paragraph [6.60], page 95.
A classic, local statement of the scope of the rule is found in the judgment of Young J (as he then was) in Gordon v Hilton (NSWSC, 13 October 1995, unreported) BC 9501693, where his Honour recorded the following: "[Upon a proper application of the rule in Re Fuld], the only statements from the attesting witnesses which are exempt from [legal professional] privilege are the statements of the witnesses made with respect to attestation or execution. Any other statements including, for instance, a general history of the family or a set of observations as to the health or possible eccentricities of the [testator or] testatrix would be outside the scope of the Fuld exception."
In Re Estate Pierobon, Deceased [2014] NSWSC 387, with elaboration, I held that the rule in Re Fuld continues to apply in NSW, in respect of claims to "client legal privilege" under the Evidence Act 1995 NSW, substantially as it did to claims of legal professional privilege under the common law: [49]-[72].
Nothing of substance in these proceedings turns on whether the plaintiff's claims of "privilege" are analysed in terms of "legal professional privilege" under the common law (Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49) or in terms of "client legal privilege" under Part 3.10 of the Evidence Act 1995.
By operation of rule 1.9 of the Uniform Civil Procedure Rules 2005 NSW (read (with the definition of "privileged document" in the Dictionary given force by rule 1.2) and section 131A of the Evidence Act, the Act governs a claim of privilege by a person who objects to a demand that he, she or it produce a document to the Court. The Act does not, in terms, govern an objection to inspection of documents already produced to the Court by another person who did not object to production: Carbotech-Australia Pty Limited v Yates [2007] NSWSC 1151 at [6]-[13]; Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526 at [28].
An application for access to documents produced on subpoena proceeds on the basis that the documents, being within the custody of the Court, are in the control of the Court: National Employers' Mutual General Association Ltd v Waind and Hill [1987] 1 NSWLR 372 at 382-383. Where documents have been produced to the Court by a person not cognisant of another's entitlement to privilege, the Court ordinarily allows the person claiming the entitlement an opportunity to establish it, and to apply for delivery up of privileged documents.
In the present proceedings the content of the law of privilege can be taken as substantially the same whether the common law or the Evidence Act is applied. Neither party has contended for a different approach to the question of "privilege" depending upon which of the three stages of the litigation process referred to in Waind and Hill at [1978) 1 NSWLR 381E-F (production of documents; inspection of documents; tender of documents as evidence) is under review.
The plaintiff's application for orders that the defendant's notices to produce be set aside focuses attention upon: 1. whether, having regard to the rule in Re Fuld, any client legal privilege attaches in favour of the plaintiff to the documents sought by the defendant; 2. whether (upon principles enunciated in cases such as Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574-575 and Waind and Hill [1978] 1 NSWLR 372 at 381E-386B) the defendant's demands for the production of documents are an abuse of the processes of the Court because: 1. the defendant can point to no legitimate forensic purpose for requiring the documents; 2. the defendant's demands for production of the documents are a speculative endeavour to obtain discovery for purposes collateral to the principal proceedings as presently constituted; and 3. production of the documents would be oppressive of the plaintiff because it would interfere with his conduct of the principal proceedings to the point of denying him a fair trial of the proceedings; and/or 1. whether, in case management of the principal proceedings, the defendant should be permitted, absent proper pleading and particularisation of her case, to insist upon the compulsory production of documents by the plaintiff.
The defendant's response to the plaintiff's allegation of abuse of process includes contentions to the effect that: 1. she should, in fairness, be permitted to enforce her demands for the compulsory disclosure of documentation by the plaintiff because the plaintiff, the testatrix's solicitor, was (to the exclusion of the defendant) privy to the making of the disputed wills in circumstances that, upon an exercise of the Court's probate jurisdiction, attract the operation of "the suspicious circumstances rule" (sometimes also known as "the righteousness rule") grounded in Barry v Butlin (1838) 2 Moo PC 480 at 482-485; 12 ER 1089 at 1090-1091, Fulton v Andrew (1875) LR 7 HL 448 at 461 and 471-472, Brown v Fisher (1890) 63 LT 465 and Tyrrell v Painton [1894] P 151 at 156 and 159-160, considered by the High Court of Australia in Nock v Austin (1918) 25 CLR 519 at 523-524 and 528 and, recently, by the Court of Appeal in Tobin v Ezekiel (2012) 83 NSWLR 757 at 770 [43]-774 [55]; and 2. she needs access to the documents she has sought to enable her to consider whether to apply to the Court for leave: 1. to amend her pleadings, in effect, to claim against the plaintiff compensation for professional negligence; and 2. to join MAH (also a solicitor) in the proceedings on a claim for damages for professional negligence.
The term "professional negligence" is here used as a compendious expression intended to take in, not only a claim for common law damages for the tort of negligence, but also satellite allegations of breach of fiduciary obligations (invoking equitable jurisdiction) and illegality (in the conduct of a legal practice or, it may be alleged, in the provision of financial advice without a licence) that presently float in the ether.
The nature of the defendant's prospective claim for compensation, and her standing to make such a claim, have not been elaborated. Whether she has in mind that the solicitors concerned owed her a duty of care personally, or whether she has in mind making a claim as a representative of the estate of the testatrix, is unclear.
That a solicitor who prepares a will for a client may, in particular circumstances, owe a duty of care to an intended beneficiary of the client is not in itself now controversial (Hill v Van Erp (1997) 188 CLR 159); but, absent any elaboration of a case by the defendant it is not self-evident that she has a firm foundation for any claim in negligence.
Claiming an inability to do so without the benefit of production of the further documentation presently sought, counsel for the defendant declined an opportunity to bring forward a draft of the compensation claims prospectively under consideration by his client.
The reasonableness or otherwise of this stance depends, in part, upon an assessment whether the defendant has had a fair opportunity to investigate the circumstances in which the disputed wills were made, bearing in mind that (unlike the defendant) the plaintiff was, directly or indirectly, involved in the making of the wills.
So it is that the questions required to be considered on the plaintiff's motion go beyond the terms of the motion itself. They extend to consideration of what is required in case management of the principal proceedings.

THE NATURE OF THE PARTIES' CONTROVERSY

The parties' preparations for a final hearing of the principal proceedings, as presently constituted, have reached the stage that, subject to a determination of the plaintiff's motion and a possibility that an application will be made to adduce expert evidence on questions of testamentary capacity, substantially all the affidavits to be relied upon at the final hearing have been filed.
With the agreement of the parties, I have read those affidavits. I have done so for the limited purpose of assessing the nature of the case each party seeks to advance at a final hearing and the parameters of the questions in dispute at any such hearing.
I do not intend, in this judgment, to make any findings of fact bearing upon the merits of the principal proceedings. Any observations I make about the facts of the case are entirely provisional, and governed by a need to manage the proceedings. The judgment is interlocutory, not final, in character.
The parameters of fact within which the questions in dispute must be determined on a final hearing place the case near the intersection of the Court's probate and equity jurisdictions.
Significance attaches to this because of observations made by several judges of the High Court in Bridgewater v Leahy (1998) 194 CLR 457 at 474[62] - 475[63], open to construction as an invitation to consider whether a disposition of property in a will might attract the operation of equitable principles relating to undue influence notwithstanding a finding that the will could not be held invalid on any application of probate principles relating to undue influence.
In Bridgwater v Leahy, Gaudron, Gummow and Kirby JJ wrote as follows: "[62] The position taken by courts of probate has been that to show that a testator did not, by reason of undue influence, know and approve of the contents of the instrument propounded as a testamentary instrument, 'there must be - to sum it up in a word - coercion' [:Wingrove v Wingrove (1885) 11 PD 81 at 82-83. See also Baudains v Richardson [1906] AC169 at 184-185; Craig v Lamoureux [1920] AC 349 at 357; Winter v Crichton (1991) 23 NSWLR 116 at 121-122]. The traditional view, repeated by Sir Frederick Jordan [in his 'Chapters on Equity in New South Wales', reprinted in Jordan, Select Legal Papers (1983), page 137], has been that a court of equity will not, on the ground of undue influence as developed by the Court of Chancery, set aside a grant made by a court of probate [: Allen v M'Pherson (1847) 1 HLC 191 (9 ER 727); cf, Birmingham v Renfrew (1937) 57 CLR 666 at 674, 676, 683, 690]. [63] The approach taken in the probate jurisdiction appears to be concerned with the existence of a testamentary intention rather than the quality of that intention or the means by which it was produced. It is a concern of this latter nature which finds expression in the treatment by equity of dispositions inter vivos. In the present litigation, with respect to the dispositions made by the will, no party submitted that equity might apply or extend its principles respecting undue influence and dispositions inter vivos, not to attack a grant of probate itself, but to subject property passing under a will to a trust in favour of the residuary beneficiary or the next of kin."
The disputed wills in the present proceedings favour the plaintiff (the testatrix's solicitor) and his wife (also the office manager of his legal practice) over the defendant, the only natural family of the testatrix. The testatrix was an elderly woman, at or about the point of entry to residence in a nursing home, at the time she executed those wills. The plaintiff and his wife were both involved (via the plaintiff's professional association with the testatrix) in management of the testatrix's affairs as well as in making arrangements for the wills to be made. The testatrix appears to have been reliant upon the plaintiff from about the time the first disputed will was made, and upon the plaintiff's wife from a time not long thereafter.
Both the plaintiff and his wife were aware of the existence of the defendant as the only next of kin of the testatrix, her prospective claim on the bounty of the testatrix and complaints by the testatrix about the quality of her relationship with the defendant. Whether any such complaints had a reasonable foundation in fact, and whether the plaintiff and his wife (wittingly or otherwise) encouraged the testatrix in her dissatisfaction with the defendant, are questions for determination at a final hearing.
The solicitor (MAH) ostensibly retained by the testatrix, independently of the plaintiff, to superintend execution of the disputed wills and to be the principal attesting witness to their execution, was a former, long term employee, and a continuing close friend, of the plaintiff and his family.
Whether her interposition between the plaintiff and his wife (on the one hand) and the testatrix (on the other hand) was sufficient to break any nexus between the testatrix's decision-making and any influence upon her arising from any ascendancy the plaintiff or his wife may have had over her (Huguenin v Baseley (1807) 14 Ves Jun 273 at 300; 33 ER 526 at 536; Harris v Jenkins (1922) 31 CLR 341 at 367-368; Johnson v Buttress (1936) 56 CLR 113 at 134-136; Bank of NSW v Rogers (1941) 65 CLR 42 at 54 and 85) may be a question for the final hearing; at least, that is, if the defendant is able to invoke equitable principles governing undue influence, and does so, or she is able to cover the same ground by her invocation of the suspicious circumstances rule, or an allegation of fraud, in probate.
Leaving aside any regulatory requirements governing the professional conduct of lawyers, there is no rule of law that precludes a solicitor, or a spouse of a solicitor, from receiving a benefit under a will of a client of the solicitor. Probate law has (or, at least, has long been perceived to have) a less tender conscience than has equity in scrutinising benefits conferred on a solicitor by a client.
Had the provision made for the plaintiff and his wife in the disputed wills been made for them by the deceased in an inter vivos transaction (by way of gift or otherwise) they would have borne, in equity, an onus to prove that the benefits conferred on them had not been procured by an exercise of undue influence.
The equitable presumption of undue influence that generally operates against a solicitor who receives a personal benefit from an inter vivos dealing with a client - beyond the reasonable terms of an ordinary retainer (Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 435E-436C) or a modest gift that can reasonably be accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary persons act (Nock v Austin (1918) 25 CLR 519 at 529-530; Quek v Beggs (1990) 5 BPR [97405] at 11,764) - does not apply, upon an exercise of probate jurisdiction, in determining whether a will made in favour of a solicitor was procured by an exercise of undue influence: JD Heydon, MJ Leeming and PG Turner (eds), Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (Lexis Nexis Butterworths, Australia, 5th ed, 2015), paragraph [15-040], citing Hall v Hall (1868) LR 1 P&D 481 and Parfitt v Lawless (1872) LR 2 P&D 462 as the seminal authorities.
As recorded in the extract from Bridgewater v Leahy set out above, upon an orthodox exercise of probate jurisdiction, for a will to be held invalid on the ground of "undue influence" actual "coercion" must be proved: Boyse v Rossborough (1857) 6 HLC 1 at 49; 10 ER 1192 at 1211; Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83; Winter v Crichton (1991) 23 NSWLR 116 at 121-122.
Conventionally, the expression "undue influence" has a different field of operation, if not meaning, upon an exercise of probate jurisdiction than it has upon an exercise of equity jurisdiction: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; 14 BPR 26,867 at [62]-[64].

EQUITY AND PROBATE JURISDICTIONS COMPARED AND CONTRASTED

Insofar as an application of equitable principles relating to undue influence might come under consideration, the Court needs to bear in mind that the basis of its equitable jurisdiction to set aside, or otherwise interfere with, an alienation of property on the ground of undue influence is the prevention of an unconscientious use of any special capacity or opportunity that may exist or arise of affecting the alienor's will or freedom of judgement relating to the transaction: Johnson v Buttress (1936) 56 CLR 113 at 134.
The governing purpose an exercise of the Court's probate jurisdiction is, generally, the due and proper administration of a particular estate, having regard to any duly expressed testamentary intention of the deceased and the respective interests of parties beneficially entitled to the estate: In the Goods of Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192; Estate Wight; Wight v Robinson [2013] NSWSC 1229 at [17]-[20]; Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [211]. The task of the Court is generally to carry out a testator's testamentary intentions, and to see that beneficiaries get what is due to them.
Cutting through the thickets of presumptions which guide decision making in the absence of the deceased will-maker, and possibly other witnesses to his or her expression of testamentary intentions (Tobin v Ezekiel (2012) 83 NSWLR 757 at 767 [2]), the essential question, in deciding whether a particular document should be admitted to probate, is whether it was the last will of a free and capable testator: Woodley-Page v Symons (1987) 217 ALR 25 at 35.
In a world of imperfect knowledge courts of probate have traditionally approached that question with the aid of procedural rules grounded upon a recognition that practical difficulties may attend a search for truth where, by the nature of the jurisdiction, the deceased is not available to give evidence about his or her intentions and key evidence about those intentions may be unavailable.
Upon a consideration of whether there is any scope for an intersection between the different concepts of "undue influence" operating under the rubric of "probate" and "equity", it is not enough simply to define, and contrast, those concepts in the abstract. They need to be placed in the context of different systems of thought, practice and procedure. Historically, "probate jurisdiction" is derived from the ecclesiastical jurisdiction exercised by church courts in England; "equity jurisdiction", from the equitable jurisdiction exercised by the English Lord Chancellor. The historical origins of these two sources of the Court's jurisdiction inform systemic differences of ongoing, functional significance.
Two illustrations of the different systemic approaches of probate and equity lawyers may usefully be noted in the present proceedings. One relates to the question of parties. The other relates to the question of onus of proof. The two questions may be inter-related. They both need to be addressed in these proceedings if, for example, the defendant contends that the wife of the plaintiff holds on trust for her any benefit the wife takes under a will of the testatrix admitted to probate.
Parties. In dealing with "parties" probate courts recognise, through their distinction between grants of probate in common form and grants in solemn form, that: (a) a grant of probate serves as an instrument of title to property passing in succession from a deceased person to beneficiaries of his or her estate (Estate Wight; Wight v Robinson [2013] NSWSC 1229 at [16]; Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [230]-[ 233]); and (b) the circumstances in which a grant might be called for range from those in which a grant can without controversy be made administratively to those that can be made only after a hotly contested trial of disputed questions of fact, in each case focusing upon what is necessary to settle or minimise disputation about the title to estate property (Estate Kouvakas [2014] NSWSC 786 at [236]-[253]).
One concept that informs the Court's approach to "parties" in this context is that probate litigation is "interest litigation" (Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631 at 634B-C) in that, to commence or to be a party to proceedings relating to a particular estate, a person must be able to show that his or her rights will, or may, be affected by the outcome of the proceedings: Estate Kouvakas [2014] NSWSC 786 at [212]. Another is that interested parties can generally be relied upon to protect their own interests, and incidentally to throw light on the circumstances in which a will may have been made. A third is that (as explained in Osborne v Smith (1960) 105 CLR 153 at 158-159) a person interested in an estate may be bound by the Court's determination of a probate suit if given notice of the suit, and an opportunity to participate in it, even if not formally named as a party to the proceedings in formal court process: Estate Kouvakas [2014] NSWSC 786 at [214]-[217], [249], [254]-[260] and [275]-[283].
This approach contrasts with that ordinarily adopted upon an exercise of equity jurisdiction. In an equity case, although the Court retains flexibility in the joinder of parties and the making of representative orders as may be convenient in the due administration of justice, ordinarily all parties interested in the outcome of proceedings should be joined, or represented, in the proceedings so that a final end can be made of controversy: Carnie v Esanda Finance Corporation (1995) 182 CLR 398 at 415-424 citing, inter alia, Duke of Bedford v Ellis [1901] AC 1 at 8-11 and John v Rees [1970] Ch 345 at 369-374. Ultimately, these authorities lead back to judgments of Lord Eldon in Adair v New River Co. (1805) 11 Ves 429; 32 ER 1153 and Cockburn v Thompson (1809) 16 Ves Jun 321; 33 ER 1005.
An absence of parties does not necessarily affect the jurisdiction of the Court to determine equity proceedings (Australian Coal & Shale Employees' Federation (1937) 38 SR (NSW) 48 at 65 and 61), but it may lead to the institution of multiple, separate proceedings rather than equity's ideal (reflected in the Supreme Court Act 1970 NSW, section 63) of a settlement of all matters in controversy and avoidance of a multiplicity of legal proceedings. A different approach to the question of "parties" is one point of distinction between the probate and equity jurisdictions.
Onus of Proof. In dealing with the question of "onus of proof" in a probate suit, the fundamental rule is that, in every case, the onus is on a party propounding a will to prove that the instrument is, in fact, the will of the deceased: Bailey v Bailey (1924) 34 CLR 558 at 570. That rule is qualified by "presumptions" conveniently summarised in Re Eger; Heilprin v Eger (Powell J, 4 February 1985) BC 8500997 at 72-74; Ridge v Rowden; Estate of Dowling (Santow J, 10 April 1996) BC 9601342 at 39-46.
Based on long, common experience of patterns of human behaviour, they are rebuttable presumptions of fact (of the character described in Calverley v Green (1984) 155 CLR 242 at 264), not far removed from inferences commonly drawn from established facts.
In a probate suit, there is no presumption of undue influence. Leaving to one side the observation that, in probate proceedings, an allegation of undue influence requires proof of facts tantamount to coercion, a party who alleges undue influence in probate bears the onus of proving it, without the benefit of a presumption of undue influence: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 1365; 14 BPR 26,867 at [63]-[64]; Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121D; Hall v Hall (1868) LR 1 P&D 481; Parfitt v Lawless (1872) LR 2 P&D 462 at 468-470. This approach reflects a robust acceptance that, in common experience and without criticism, a person might be subjected to social pressures falling short of coercion in the making of a will. The focus for attention is on the essential question whether a will is that of a free and capable testator. As a will takes effect only on or after the death of testator, the court has no concern for his or her subsequent welfare, as distinct from the interests of those beneficially entitled to a deceased estate.
By way of contrast, upon an exercise of equitable jurisdiction relating to a disposition of property inter vivos, the Court may be concerned about the ongoing welfare of the disponor; and, in its concern to prevent or redress unconscientious conduct, it allows for there to be a presumption of undue influence in some circumstances. When such a presumption arises it may be rebutted by proof that the disponor: (a) knew and understood what he or she was doing; and (b) was acting independently of any influence arising from the ascendancy of the disponee over the disponor. Proof of the first element, without proof of the second, is insufficient to rebut the presumption: Quek v Beggs (1990) 5 BPR [97405] at 11,765; Bridgewater v Leahy (1998) 194 CLR 457 at 475[63]. Equity's presumption has a prescriptive element designed to enforce a standard of behaviour, quite distinct from the bare, empirical character of probate presumptions.
Part of the machinery of judicial decision-making designed to address the essential question whether a particular document was the last will of a free and capable testator, probate presumptions are a means to that end, not an end in themselves.
That they do not displace the necessity for the Court to focus on the essential question is confirmed by traditional language of probate judges: 1. calling upon a court of probate to exercise vigilant care and circumspection in investigating a case, and not to grant probate without full and entire satisfaction that an instrument propounded as a will did express the real intentions of the deceased (Barry v Butlin (1838) 2 Moo PC 480 at 485; 12 ER 1089 at 1091); and 2. speaking of a need to "satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator" (Tyrrell v Painton [1894] P 151 at 157).
Although the final hearing of a probate suit ordinarily exhibits some of the trappings of an adversarial, common law trial of a claim of right, an exercise of probate jurisdiction retains its historical origins in the inquisitorial tradition of English ecclesiastical courts. That is illustrated: (a) by statements made by probate judges about the court being under a duty or, at least, being at liberty to investigate the circumstances of a case independently of allegations and counter-allegations of particular parties who appear before it (In the Estate of Fuld, Deceased (No 3) [1966] 2 WLR 717 at 757G-H; Spoehr v Health Services Charitable Gifts Board [2014] SASC 171; 121 SASR 174 at [38]; Docking v Schwarzkopf [2015] SASC 18 at [8]; In the Estate of Leona Johnson (Deceased) [2015] SASC 51 at [11]); and (b) in recognised departures in probate cases from the ordinary rule that "costs follow the event" in civil litigation (Re Estate of Hodges, Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 709D-710B; Shorten v Shorten (No 2) [2003] NSWCA 60 at [14]-[27]; Shovelar v Lane [2011] EWCA Civ 802; [2012] 1 WLR 637; [2011] 4 All ER 669 at [44]). There is a strong public interest element in probate proceedings that precludes their characterisation as purely adversarial in character.

THE FACTUAL MATRIX OF THE PRINCIPAL PROCEEDINGS

Without pausing to notice nuances in an unfolding story, or competing accounts evident in the evidence compiled to date, I provide here a narrative of basic features of the story addressed by the principal proceedings, taking the documentary record as a guide.

The Estate

Margaret Bunce (the testatrix) died in Bowral, NSW, on 30 June 2012, aged 81 years, leaving: 1. the documents presently contested as wills, respectively dated (in reverse date order) 24 September 2010, 14 July 2009 and 22 October 2004; 2. an estate comprising financial assets, with an estimated value slightly in excess of $800,000; and 3. her adult daughter (the defendant), ordinarily resident overseas.

The 2004 Will (and associated business)

The validity of the 2004 will, propounded by the defendant in her cross-claim, is not challenged but for the later, contested wills of 2009 and 2010, each of which is expressed to revoke all earlier wills.
The 2004 will and associated documentation appears to have been executed in the context of a move made by the testatrix, at about the same time, from her Mittagong residence to a retirement village (Harbison Homes at Moss Vale) to be closer to her husband (father of the defendant), incapacitated by dementia. Her husband predeceased her.
It was in receiving instructions for the 2004 will that the plaintiff first met the testatrix. She contacted him on the recommendation of neighbours. She was, at that time, personally unknown to both the plaintiff and his wife.
The 2004 will appointed the defendant as executrix and left the whole of the testatrix's estate to her.
The plaintiff drafted the will on the instructions of the testatrix and was an attesting witness to its execution.
Contemporaneously with the will the testatrix executed an enduring power of attorney in favour of the defendant. It too was drafted and witnessed by the plaintiff. He also certified (in accordance with section 19 of the Powers of Attorney Act 2003 NSW) that he had explained the effect of the instrument to the testatrix before she signed it, and she had appeared to understand its effect.
Four days after the will and the power of attorney were executed, on 26 October 2004 the testatrix and the defendant each signed a deed of loan and a memorandum of mortgage securing the loan, evidencing an advance of $200,000 made by the defendant to the testatrix (on the security of the testatrix's Mittagong residence) to assist the testatrix to pay a deposit on a place in a retirement village.
The plaintiff prepared that documentation and witnessed the signatures of both the testatrix and the defendant.
The loan documentation provided that the testatrix agreed to repay the amount of the loan upon the first occurring of: (a) her death; (b) the defendant giving not less than six month's notice of demand for repayment; or (c) the sale by the testatrix of her Mittagong residence. To the chagrin of the defendant's partner (who, by a commercial borrowing secured against his own property overseas, funded the loan) the loan documentation apparently made no provision for the testatrix to pay interest on the loan.

Subsequent Developments

On 21 December 2004 the testatrix signed a formal instrument, prepared and witnessed by the plaintiff, in which she revoked the power of attorney two months earlier granted by her in favour of the defendant. At the same time she executed a fresh enduring power of attorney in favour of the defendant. It was prepared on her instructions by the plaintiff, who witnessed her signature and provided the statutory certificate attesting her competence.
The new power of attorney differed, in substance, from the one it replaced in that it imposed limitations on the defendant's authority. One limitation was that the testatrix's bank accounts were only to be used to provide living expenses and accommodation for her and her husband, then suffering dementia and since deceased. The second limitation was a stipulation that the testatrix's Mittagong residence was not to be sold or mortgaged by the defendant "without the consent of my solicitor, [the plaintiff]."
Dissatisfied with delay in a sale of the testatrix's residence, by a formal letter dated 28 April 2005 the defendant demanded repayment of the loan.
Whether or not that demand was necessary from the perspective of the defendant or otherwise justified in the context of dealings within the family, it appears to have marked, and contributed to, a decline in the personal relationship between the testatrix and the defendant.
The letter of demand is expressed to have been copied to the plaintiff, although addressed to the testatrix.
On 13 September 2005 the testatrix executed: 1. a formal instrument revoking the power of attorney dated 21 December 2004 granted in favour of the defendant; and 2. an enduring power of attorney in favour of the plaintiff.
MAH witnessed the testatrix's execution of both documents, and provided the statutory certification of the testatrix's competency for the power of attorney.
The power of attorney repeated the first, but not the second, of the limitations on authority recorded in the power of attorney dated 21 December 2004.
On or about each of 25 May 2006 and 6 July 2007 the testatrix (apparently without any involvement on the part of the plaintiff) executed an "advance care directive" (of the type discussed in Hunter and New England Area Health Services v A by his Tutor T (2009) 74 NSWLR 88) in which the plaintiff was named as her authorised representative for any life decisions to be made by her or on her behalf in her approach towards death. In the former document the plaintiff was described, as part of a printed form but evidently erroneously, as the testatrix's "enduring guardian". In the later document the defendant was identified (in response to a printed form) as the testatrix's "next of kin"; but the plaintiff was identified, evidently in the hand of the testatrix, as her "power of attorney" and "solicitor".
On or about 17 June 2009 the testatrix had a fall, as a consequence of which she was admitted to hospital and (after assessment) subsequently transferred to Bowral Nursing Home as a resident.

The 2009 Will

On 14 July 2009 the testatrix signed: 1. the penultimate will signed by her; 2. an instrument appointing the plaintiff as her enduring guardian; 3. an enduring power of attorney in favour of the plaintiff's wife; and 4. a formal acknowledgement of receipt of a letter bearing the date 14 July 2009 addressed to the testatrix by the plaintiff, on his professional letterhead, advising her that, although she had expressed a wish to make a gift to him in her will in lieu of his charging her professional fees for acting as her attorney and managing her affairs, his prospective appointment as her executor in the will entitled him to claim commission for work of a non-professional nature carried out by him in administration of her deceased estate.
This documentation was prepared by the plaintiff, and presented to MAH by him with a request that she attend upon the testatrix to confirm her instructions and (subject to her instructions) to have it executed.
MAH witnessed the testatrix's execution of the will, the guardianship appointment and the power of attorney. She provided a certificate of competency under section 19 of the Powers of Attorney Act 2003 and under section 6C of the Guardianship Act 1987 NSW. She witnessed, in fact, the testatrix's acknowledgement of receipt of the plaintiff's letter, but was not required by the terms of the letter to record the fact of her having done so.
The will was witnessed not only by MAH but also by a legal secretary (an employee of the plaintiff) who accompanied her to the testatrix's then residence (at Bowral House) for the express purpose of witnessing the will. Affidavit evidence filed by the plaintiff is to the effect that the secretary played only a formal role in witnessing execution of the will under the supervision of MAH.
The 2009 will appointed the plaintiff as executor of the testatrix's estate, and divided the estate between the defendant (as to 80%) and the plaintiff (as to the remaining 20%).
The will also provided clauses to the following effect: "4. I DECLARE that any benefit given under my Will to my Trustee [the plaintiff] is in addition to but not in substitution for any commission to which he may be entitled for his pains and trouble in the administration of my Estate. 5. I AUTHORISE AND EMPOWER my Trustee [the plaintiff] to retain and pay to himself out of my estate as a proper charge for his pains and trouble in acting as the executor and trustee of this my Will and for the work of administering my estate a commission at the rate of 2% upon the gross proceeds of the sale conversion and collection of my real and personal estate or upon the gross value of my real and personal estate as established for the assessment of New South Wales Death duty whichever shall be greater and a commission at the rate of 5% upon all income due to my estate and from time to time collected by him. 6. I DECLARE that [the plaintiff] or any Trustee for the time being of my Will being an Accountant or Solicitor or other person engaged in any profession or business shall be entitled to charge retain and be paid all usual professional and other charges for business and work done by them or their firm in connection with the approving of my Will and in relation to the trusts thereof and also their reasonable charges in addition to disbursements for all other work done and time spent by them or their firm in connection with matters arising in the premises including the keeping of Executors accounts and matters which might or shall be attended to in person by a Trustee not being a Solicitor, Accountant or other professional person."
Part of the explanation for these provisions, and his assumption of a management role vis-a-vis the affairs of the testatrix, offered by the plaintiff in the affidavit sworn by him in the principal proceedings (but not articulated in his pleadings) is a suggestion that, in the absence of anyone else close at hand to assist the testatrix in management of her day-to-day affairs, she and he agreed that he would perform a management role as her solicitor and attorney, without fee during her lifetime, in return for testamentary benefits in the form of a gift and entitlements to remuneration in administration of her deceased estate.
That said, the plaintiff has not pleaded, and the evidence might fall short of, a contract to make a will (governed by principles enunciated in Horton v Jones (1935) 53 CLR 475) effective to warrant a finding that, had the testatrix not made provision for the plaintiff as she did, there may have been a ground for him to claim that equity should intervene, by the imposition of a constructive trust, to hold her to her promise of testamentary recompense for services he rendered her during her lifetime.
Whether, during the lifetime of the testatrix, the Court would have allowed a solicitor to enforce such a retainer agreement against a client in its regulation of the legal profession (Woolf v Snipe (1933) 48 CLR 677 at 678-679) is a moot point given that, on the plaintiff's case, the testatrix honoured their agreement and it is unnecessary for him to invoke the assistance of equity to enforce it.

Subsequent Developments

On 28 August 2009 the testatrix exchanged contracts for the sale of her Mittagong residence. The plaintiff acted as her solicitor on the sale, which was completed on 9 October 2009, providing (from the sale price of $650,000) funds to pay an accommodation bond of $200,000 payable on her occupation of a unit at Bowral House Nursing Home.
In reporting on settlement of the sale to the defendant, by a letter dated 11 November 2009 on his professional letterhead, the plaintiff (evidently on instructions from the testatrix) recorded disagreements between the testatrix and the defendant about ownership of chattels at the Mittagong residence, disposed of by or on behalf of the testatrix during the course of the sale.

The 2010 Will

On 24 September 2010 the testatrix executed the last of her putative wills. It was prepared by MAH, apparently with the prior knowledge of the plaintiff but no direct input by him.
The plaintiff's wife was directly involved, at least, in (re)introducing MAH to the testatrix at the nursing home as a preliminary to MAH taking instructions for the will.
This will, like the 2009 will, appointed the plaintiff as executor with the benefit of the same provisions (clauses 4, 5 and 6) relating to his entitlement to remuneration.
The new will differed in its disposition of the testatrix's estate. Clause 3 provided as follows: "3. I GIVE DEVISE AND BEQUESTH the rest and residue of my estate to my daughter [the defendant] and my friend [the plaintiff's wife] and to my [Trustee, the plaintiff] as shall survive me and if more than [one] in equal shares.
The testatrix's execution of the will was witnessed by MAH and a member of the staff of the nursing home in which the testatrix was then resident. However, affidavit evidence filed by the plaintiff in the proceedings is to the effect that the staff member played only a formal role in witnessing execution of the will at the request, and under the supervision, of MAH.

THE COURSE OF THE PRINCIPAL PROCEEDINGS

Following the death of the testatrix on 30 June 2012, the defendant (on 22 August 2012) filed in the Court a caveat against any grant of probate in the estate of the testatrix being made without prior notice to her; the plaintiff filed (on 24 August 2012) a summons seeking an order that he be granted probate of the 2010 will; and, in aid of that summons, he subsequently (on 28 September 2012) filed a notice of motion seeking an order that the defendant's caveat cease to be in force. The summons was filed before service of the caveat on the plaintiff. The existence of the caveat caused the Court to issue a requisition to the plaintiff, calling upon him to file a fresh summons (to which he responded by filing a notice of motion instead) seeking to have the caveat removed as a pre-condition to any grant being made on an uncontentious basis.
The motion came before Windeyer AJ on 22 October 2012, upon which date his Honour dismissed it and ordered that the proceedings proceed on pleadings.
In ex tempore reasons for judgment his Honour made the following observations: "The basis upon which the defendant seeks to maintain [her] caveat, and therefore be entitled to have [the proceedings] proceed as a contested suit, is first that she is the daughter of the deceased; second, that she is a beneficiary of the deceased; and thirdly, that she was a beneficiary entitled to a greater share under earlier wills. On that basis she has an interest. The question however is whether there is any basis on which it might be shown that the last will of the deceased should not be admitted to probate. There is a suggestion that the defendant wishes to obtain an expert report from Professor Pesiah as to whether or not the deceased had capacity. In my view, at the present moment, there is really nothing which could support an entitlement to keep the caveat on that ground. Against that, however, is the fact that the plaintiff is a solicitor. He obviously was a friend of the deceased, he prepared an earlier will of the deceased, and he is a substantial beneficiary under the last document, if it is a valid will. Under it he and his wife take two-thirds of the estate of the deceased and the daughter caveator takes one third. In a matter such as this where a solicitor becomes a substantial beneficiary, that is I think sufficient to cast some doubt as to the validity of the will. I appreciate that the solicitor was not a witness to the will and the Court does not know who prepared it, but it does know or has been told without objection that the solicitor who witnessed it was previously an associate of or in some way connected with the plaintiff. The only way that any evidence can be obtained on the question of capacity is if proceedings are commenced so that subpoenas can be issued to the relevant nursing home and other medical documents. I have considerable doubt as to whether anything would be achieved by that but nevertheless, the questions of knowledge and approval and possibly of undue influence are sufficient to maintain the caveat and capacity can be put in issue if thought proper, although I am of the clear view at the moment that if the caveator fails, she could not obtain any order for costs from the estate. That is not a matter for me to decide. It is just a warning to her or her advisers."
Pleadings ensued, with an amendment of originating process on both sides of the record in due course.
In substance, the parties have joined issue, in relation to each of the 2009 will and the 2010 will, on the defendant's allegation that each will is invalid because of a want of testamentary capacity, a lack of knowledge and approval on the part of the testatrix, and undue influence on the part of the plaintiff and others acting with him.
The defendant's cross-claim does not, in terms, challenge "knowledge and approval". Instead, it asserts that execution of each will was "procured in suspicious circumstances". Nevertheless, read in context, that form of allegation might reasonably be thought to be directed, principally, to the question of knowledge and approval.
The particulars relied upon by the defendant in her cross-claim are both sparse and indicative of a perception that, in practice, there can be (via an allegation of "suspicious circumstances") an overlap between the concepts of "undue influence" and "knowledge and approval".
The particulars of undue influence, relied upon in relation to each contested will, are to the following effect: 1. "At the time of the execution of the purported will, [the plaintiff] was the Solicitor of the deceased, and as such, was in a relationship with the deceased where the [plaintiff] was the dominant party"; and 2. "The deceased considered [the plaintiff] as her Solicitor up to the time of her death".
These particulars fall short of an orthodox allegation of undue influence in probate but, rather, reflect an allegation of undue influence in equity.
Having reviewed the parties' affidavits and entertained submissions on the plaintiff's motion, I do not exclude the possibility that the defendant will endeavour to contend at the final hearing that the plaintiff, his wife or MAH procured execution of the disputed wills by conduct that was misleading or deceptive. The defendant's case appears to include a contention that, knowing of her prospective interest in the estate of the testatrix, the plaintiff and his wife (in ministering to the needs of the testatrix, and managing her affairs, increasingly to the exclusion of the defendant) wittingly or unwittingly caused, or allowed, the testatrix to indulge, or develop, a jaundiced (if not delusional) view of the defendant, progressively poisoning the testatrix's perceptions of the defendant and alienating her in the affections of the testatrix.
If (as I apprehend) that contention extends to an allegation that the plaintiff engaged in misleading or deceptive conduct, suggesting conduct properly characterised as a species of fraud, the defendant requires an amendment of her pleadings to advance it: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 at [10], [59]-[61] and [65]-[69].
Absent an allegation of misleading or deceptive conduct, the fact that the particularised pleading of "undue influence" falls short of an orthodox allegation of probate undue influence is reinforced by an apparent absence in the parties' affidavits of evidence of actual coercion of the testatrix. The defendant needs to clarify, and confirm, the character of any undue influence case she seeks to advance at a final hearing.
It remains true (as noticed in Revie v Druitt [2005] NSWSC 902 at [54] and [2005] NSWSC 965 at [14]) that allegations of probate undue influence rarely succeed in practice. Neither in theory nor in practice is it easy to prove (as it must be to establish undue influence in probate) that the "will" (that is, the intention) of a person who has executed a testamentary instrument under challenge was overborne so that, in fact, he or she had no intention to make that instrument: Miller v Jones [1999] NSWCA 467 at [28].
Two recent examples of a finding of undue influence in a probate case are Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [263]-[277] and [308]-[314] per Hallen AsJ and Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [162] and [173] per White J.
The classic case of a successful allegation of undue influence in probate remains Hall v Hall (1868) 1 P & D 481. Its practical utility is, however, limited because it was a jury trial and, although we have the benefit of a potted summary of competing contentions in the evidence, and an extract of the judge's summing up, there is no way of knowing with certainty what, precisely, motivated the jury to decide as it did. The bare summary of the evidence accommodates no nuance. Juries do not publish reasons for judgment.
Although authority can be found for the proposition that established grounds upon which the validity of a will can be challenged (testamentary incapacity, lack of knowledge and approval, undue influence and fraud) are and must be kept distinct, in practice those grounds may overlap, or merge, in particular factual settings, particularly in the context of "suspicious circumstances" the existence of which may displace one or more of the presumptions of fact that routinely guide probate discourse: In the Estate of Fuld, Deceased (No. 3) [1966] 2 WLR 717 at 757F.
Metaphysical, analytical divisions of the larger question whether a document was the last will of a free and capable testator can dissolve in a factual setting. That this may be so draws attention to that larger question, and the purpose served by an exercise of probate jurisdiction.
In relation to each contested will, the particulars of the defendant's allegation that the will "was procured in suspicious circumstances" are to the following effect: 1. "Prior to and at the time of execution of the purported will, [the plaintiff] was the Solicitor of the deceased"; and 2. "The purported will left [a substantial, specified proportion] of the deceased's estate to [the plaintiff and, in the case of the 2010 will, his spouse]."
These particulars, too, are reminiscent of an allegation of undue influence in equity. They are, however, not open to unqualified criticism on that account because the "suspicious circumstances rule" is capable of having a close affinity with equity's principles relating to undue influence. To some extent, perhaps irregularly, it performs a function in the service of the probate jurisdiction similar to that served by the concept of undue influence in the equity jurisdiction. A number of the principal cases in which the rule has been considered involve solicitor-beneficiaries. Witness Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089, Nock v Austin (1918) 25 CLR 519, Wintle v Nye [1959] 1WLR 284 and Ramcoumarsingh v Adminstrator General [2002] UPC 67; [2002] All ER (D) 259 (Dec).
As a practical matter, any deficiency in particularisation of the defendant's allegations may have been addressed in affidavits filed in anticipation of a final hearing. Be that as it may, the pleadings need to be reviewed in order to ensure that the parties' respective cases are properly pleaded and particularised. Pleadings provide a standard against which the admissibility of evidence is judged, not the other way around.
Accepting Windeyer AJ's ruling that there were sufficient "suspicious circumstances" to put him to proof that the 2010 will (or, in the alternative, the 2009 will) should be admitted to probate, the plaintiff has filed substantial affidavits from each of himself, his wife and MAH, as well as relatively formal affidavits from each attesting witness other than MAH to the two wills.
For her part, the defendant has filed extensive affidavits sworn by herself and her partner deposing to their observations of, and dealings with, the testatrix over decades, together with corroborative affidavits from others who have knowledge of her patterns of behaviour.
The affidavits of the defendant and her partner are directed not only to probate issues but also to her claim for family provision relief, an aspect of the proceedings not specifically addressed in the plaintiff's affidavits. In case management of the proceedings it may be appropriate to make an order (under UCPR rule 28.2) that the family provision claim be determined after a separate determination of the question of which of the testatrix's wills is to be admitted to probate, and any ancillary claim for equitable relief.
The plaintiff's affidavits extensively address each of the grounds of challenge made by the defendant to the contested wills. Given the parties' dispute about operation of the rule in Re Fuld, notice must be taken of the fact that the two affidavits sworn by MAH address in detail, not merely formalities of process involved in the execution of the disputed wills, but also observations bearing upon the testatrix's testamentary capacity. In In re Webster, deceased [1974] 1 WLR 1641; [1974] 3 All ER 822, reasoning analogous to that found in Re Fuld was brought to bear upon a question whether the propounder of a disputed will could, in fairness, be allowed to cross examine an attesting witness on the issue of testamentary capacity, not merely on due execution.
The rule in Re Fuld operates in aid of the purpose served by an exercise of probate jurisdiction, focusing on substance over form, grounded upon characterisation of an attesting witness as a witness of the Court, recognising the public interest imperatives of probate litigation. That characterisation highlights the importance of case management principles in the Court's exercise of probate jurisdiction.
I intend no criticism of any person in recording that, on the face of the affidavit evidence, conduct of the final hearing is likely to involve substantial questions as to the credit of the plaintiff, his wife and MAH. That appears to have been anticipated, in part, by the apparent thoroughness with which the affidavit evidence on the plaintiff's side of the record has been prepared, and by the perceived need of MAH to swear a supplementary affidavit responsive to criticism advanced by the defendant's lawyers in correspondence not far removed from a form of interrogatories.

Introduction

Each application made by the plaintiff via his amended notice of motion (the first, an application for documents to be re-privileged; the second, an application for notices to produce to be set aside) invites consideration of the parameters of the rule in Re Fuld in the context of case management principles applicable to contested probate proceedings.
The defendant's arguments on the motion are grounded upon two particular propositions: 1. first, relying upon Tobin v Ezekiel (2012) 83 NSWLR 757 at 783 at [94], she contends that, as an executor named in wills of the testatrix, the plaintiff has an obligation to place before the Court all evidence bearing on the issues raised by the defendant, in the principal proceedings, relating to the validity or otherwise of those wills. 2. secondly, relying upon Re Estate Pierobon, Deceased [2014] NSWSC 387, especially at [62] et seq, she contends that the documentation in dispute on the plaintiff's motion lacks, vis-a-vis the Court, the requisite character of confidentiality to support any entitlement in the plaintiff, or any other person, to legal professional privilege.
In the defendant's case, it follows from this that she is entitled, or ought to be allowed, to use the Court's "discovery" processes (more particularly, processes relating to the issue of subpoenas and the service of notices to produce) to investigate (or, perhaps more accurately, in effect, to interrogate the plaintiff, his solicitor and MAH about) issues concerning: 1. whether the plaintiff had any input into the preparation of statements made, and affidavit evidence sworn, by MAH. 2. whether grounds exist for a claim, against the plaintiff and/or MAH, for compensation for professional negligence.
The defendant's case involves an expansive view of the rule in Re Fuld, tending to deny to any person an entitlement to confidentiality in respect of a communication with a witness to execution of a will.
In response to the defendant's case, the plaintiff complains that, by incessant demands for the production of documents, with fresh demands following upon inspection of documentation made available, the defendant is engaged in a course of conduct that constitutes an abuse of the processes of the Court and, moreover, an abuse that puts at jeopardy any entitlement of the plaintiff to a fair trial. The perception of the plaintiff (disputed by the defendant) is that the defendant seeks to reach into the very brief of counsel retained to advise, and to appear, for him in these proceedings.
The plaintiff's forensic response to the defendant's case about disclosure of documentation approaches this point from opposite angles. On the one hand, he has filed detailed affidavits sworn by himself, his wife and MAH, including a supplemental affidavit sworn by MAH responsive to criticism from the defendant's camp. On the other hand, he urges upon the Court a narrow definition of the scope of the rule in Re Fuld.
My strong impression of the state of readiness of the proceedings for a final hearing, formed with the benefit of a review of the parties' affidavits as well as detailed submissions by counsel, is that there has been an exposure of facts about execution of the testatrix's wills (and their preparation) sufficient to expose the truth about their execution to proper scrutiny, subject to a proviso.
That proviso is that the plaintiff, his wife and MAH be available for cross examination at the final hearing.
In the course of argument on the plaintiff's motion, his counsel indicated a preparedness to give an undertaking that those witness would be available for cross examination, or, in any event, to proceed on the basis that they will be required for cross examination. An undertaking is presently unnecessary; but case preparation should proceed on the basis that they will be required, and they should be available, for cross examination.
MAH is presented to the Court by the plaintiff as an independent witness: First, as a solicitor who acted for, and advised, the testatrix independently of the plaintiff and his wife; and, secondly, as a witness called to give evidence, independently of the plaintiff and his wife, about the circumstances in which the 2009 and 2010 wills of the testatrix were prepared and executed.
There is no evidence that, in the preparation of her affidavits, MAH was expressly asked by the plaintiff or his lawyers to keep their communications with her, or resultant documents, confidential.
Having regard to the rule in in Re Fuld, and the plaintiff's presentation of MAH to the Court as an independent witness, I am not prepared to infer that MAH was under an implied obligation of confidentiality to the plaintiff.
Absent such an obligation, she was at liberty to provide the documents presently under controversy to the defendant, the defendant's lawyers or (as it happens) to the Court in response to a subpoena.
In this setting, it is neither necessary, nor desirable, to explore in these proceedings the outer limits of the rule in Re Fuld. It is sufficient: 1. to observe that proof of an entitlement to confidentiality attaching to a document alleged to be privileged is an essential element of proof of an entitlement to legal professional privilege: Ritz Hotel Ltd v Charles of the Ritz Ltd [No 22] (1988) 14 NSWLR 132 at 133F-134A; Trade Practices Commission v Ampol Petrol (Victoria) Pty Limited (1994) 53 FCR 578 at 584A-585D and 586B; State of NSW v Jackson [2007] NSWCA 279 at [38], [42]-[43], [52]-[55] and [60]-[61]; 2. to recall the governing purpose of an exercise of the Court's probate jurisdiction (the due and proper administration of a particular estate, having regard to any duly expressed testamentary intention of a deceased and the respective interests of parties beneficially entitled to the estate); 3. to remind oneself of foundational observations of Scarman J in Re Fuld [1965] P 405 at 410 about the rationale for the rule; and 4. to view the purposive character of the probate jurisdiction, and the rule, through the prism of case management principles.

"Abuse of Process" as a function of the purpose of Probate Proceedings

Insight into the importance of consulting the purpose served by an exercise of probate jurisdiction can be had by an examination of the concept of an abuse of the processes of the Court.
The concept of an abuse of process extends to use of proceedings as a means of obtaining some advantage for which they are not designed, or some collateral advantage beyond what the law offers: Williams v Spautz (1992) 174 CLR 509 at 526-527. The criterion for finding an abuse of process is whether an improper purpose is the predominant purpose of the moving party in using a legal process; the improper purpose does not have to be the sole purpose of the moving party: 174 CLR 529.
The jurisdiction to stay proceedings on the ground of abuse of process also extends to cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness: Walton v Gardiner (1993) 177 CLR 378 at 392-393.
Classically, use of a subpoena process as a means of "fishing" for facts to ground a cause of action is also characterised as an abuse of process: Commissioner for Railways v Small (1983) 38 SR (NSW) 564 at 574-575 and Waind v Hill [1978] 1 NSWLR 372 at 381E-386B.
By these measures, on each count, the defendant's use of the Court's subpoena processes to investigate whether grounds exist to advance a claim for compensation on a cause of action in professional negligence (broadly defined or not) is an abuse of process. It is quite foreign to the purpose for which probate proceedings have been designed.
A claim for compensation on a cause of action in negligence has no practical connection with the question whether a grant of representation should be made in, and for the purpose of, due administration of the testatrix's estate. What the defendant has foreshadowed is, essentially, a prospective claim of right, principally if not exclusively, made in the interests of the defendant, not a claim bearing upon a grant of administration of the testatrix's estate.
A claim for family provision relief, under chapter 3 of the Succession Act, is, these days, not uncommonly joined in proceedings for a grant of probate, subject to any order the Court might make (under UCPR rule 28.2 for the separate determination of questions relating to an exercise of probate and family provision jurisdiction); but the joinder of a professional negligence claim in probate proceedings is a far remove from that circumstance, and the use of probate proceedings as a means for discovering whether a professional negligence action will run is a clear abuse.

The Rationale of the rule in Re Fuld

The rationale for the rule in Re Fuld is also closely associated with the governing purpose of an exercise of the court's probate jurisdiction.
Characterisation of a witness to execution of a will as a witness of the Court (Re Fuld [1965] P 405 at 409F-411B) is a preliminary to the following observations by Scarman J at [1965] P 410: "… there can be in a probate case an apparent clash or conflict between the right of the Court to know everything that its witness knows or has said about execution [of a will], and the right of a party to claim privilege for communications passing between that witness and himself or his solicitor for the purpose of collecting evidence for the hearing. If there be such a conflict, I have no doubt that it must be resolved in favour of the Court. Strictly, however, there is no conflict because the Court in its inquisitorial capacity is seeking the truth as to execution. The parties upon the issue of execution are assisting the Court in its search for the truth. It seems to me, therefore, that if the Court comes to the conclusion that the truth can only be discovered by asking a witness to produce earlier statements that he may have made in writing concerning execution, then the Court is entitled to insist on those statements, and I so rule."
In Re Estate Pierobon [2014] NSWSC 387 at [49]-[50] I expressed the following opinion, to which I adhere: "[49] If [as I have held] 'the rule in Fuld' survives in the present legislative context governing claims of legal professional privilege ('client legal privilege' as it is called in the Evidence Act) it would, in my assessment, extend to any record of a statement made by a witness dealing with the question of execution or attestation of a testamentary instrument (whether a will, codicil or informal testamentary instrument) under review, and not be limited merely to a written statement signed or adopted by the witness personally. [50] The focus is upon substance rather than form. The fact that a record of a material statement made by witness takes a particular form does not govern its availability for production to the Court. Given the purpose served by 'the rule', and its foundation in characterisation of a witness as a witness of the Court, attention focuses on the availability of information about statements made by the witness dealing with the question of due execution of the testamentary instrument said to have been executed."
A key ingredient in these observations, and in those of Scarman J, is the centrality of the Court in control of the process of inquiry into whether a testamentary instrument has been duly executed. The proposition that a statement by a witness to execution or attestation of a testamentary instrument lacks the requisite character of "confidentiality", vis-a-vis the Court, to ground an entitlement to privilege, vis-a-vis the Court, should not necessarily be taken as a denial of an entitlement to confidentiality that might, subject to orders of the Court, otherwise attach to communications between such a witness and another party. Nor should it be taken as a licence for an adversarial party to interrogate an opponent or a witness, at large and without leave of the Court, in pre-trial case preparation. In case management of probate proceedings the Court is able to make orders designed to ensure that the evidence of an attesting witness is preserved, and made available to interested parties, in an orderly way, in service of the proper administration of justice.
On this front, as well as that relating to the Court's restraint of abuses of process, the defendant's pursuit of the plaintiff and MAH through "discovery" procedures meets a hurdle.

The Operation of Case Management Principles

That hurdle finds expression in the case management principles presently embodied in sections CPA 56-60.
Section 56 identifies "the overriding purpose" of the Civil Procedure Act and rules of court, in their application to civil proceedings, as facilitation of "the just, quick and cheap resolution" of the real issues in the proceedings, obliging the Court, parties and their lawyers to pay heed to that purpose.
For the purpose of furthering "the overriding purpose", section 57 requires that proceedings be managed having regard to "objects" identified as: (a) the just determination of the proceedings; (b) the efficient disposal of the business of the Court; (c) the efficient use of available judicial and administrative resources; and (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
Section 58 mandates that, in the management of civil proceedings, the Court must seek to act in accordance with the dictates of justice, an expression elaborated by reference, inter alia, to sections 56 and 57.
Section 59 mandates that the practice and procedure of the Court be implemented with the object of eliminating delay beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties in the preparation of a case for trial.
Section 60 directs the Court to manage cases with the object of resolving the issues between the parties in such a way that the cost to them is proportionate to the importance and complexity of the subject matter in dispute.
Taken together, these provisions provide a framework for determination of the plaintiff's motion that require the Court to take into account the nature of the questions in dispute; the nature and scope of the affidavits prepared, on both sides of the record, in relation to those questions; the availability of the plaintiff, his wife and MAH for cross examination by the defendant at a final hearing of the proceedings; and the state of readiness of the proceedings for the appointment of a dates for their final hearing.

The Plaintiff's "Re-privileging" Application

The documents the subject of controversy (copies of which are Exhibit P3), produced on subpoena by MAH and inspected by the defendant's lawyers, cannot now be recalled, quarantined and classified as confidential vis-a-vis the plaintiff even if, but for the defendant's inspection of them, privilege might have attached to them in favour of the plaintiff.
The documents comprise email correspondence passing between the plaintiff's solicitors and MAH between 23 April 2013 and 14 August 2013, together with a six page draft affidavit of MAH, evidencing the process by which the affidavit affirmed by MAH on 14 August 2013 was prepared.
But for the operation of the rule in Re Fuld, the documents might ordinarily be expected to be the subject of an entitlement to legal professional privilege vested in the plaintiff.
However, any presumptive entitlement to privilege depends for its existence on a finding of fact that communications between the plaintiff's lawyers and MAH giving rise to creation of the documents in respect of which the plaintiff claims privilege were conducted on the basis that they, and the resultant documents, were confidential to the plaintiff.
As the claimant of an entitlement to privilege, the plaintiff bears the onus of establishing that fact: Grant v Downs (1976) 135 CLR 674 at 689; National Crime Authority v Capital S (1991) 29 FCR 203 at 211; Trade Practices Commission v Ampol Petrol (Victoria) Pty Limited (1994) 53 FCR 578 at 583G-584A; State of NSW v Jackson [2007] NSWCA 279 at [38].
I am not satisfied that it is the fact. On the contrary, I infer from the course of events, including MAH's apparent consciousness of a professional duty to maintain a degree of independence from the plaintiff as a witness in the proceedings, that she did not consent to her communications with the plaintiff's lawyers being confidential to the plaintiff. I do not go so far as to find that she was fully aware of the rule in Re Fuld, or its forensic implications, but I am satisfied that she was conscious of a need to maintain a degree of independence, and that her evidence would be the evidence of close scrutiny, even if, from time to time, she allowed herself to be too close to the plaintiff and his lawyers.
The disputed documents came into existence against a background of the plaintiff (in August 2012) expressly advising the defendant's then solicitor that he had consented to MAH communicating with the defendant's solicitor in relation to the testatrix's estate, and expressly confirming that advice in writing, and apparently by telephone, to MAH herself.
The fact that MAH acted as a solicitor for the testatrix, not merely as an attesting witness to the testatrix's execution of wills, adds a further dimension to the case, bearing in mind that, absent a grant of probate, the plaintiff does not represent the testatrix in these proceedings, and the defendant is no less a beneficiary of the testatrix's wills than is the plaintiff. Any subsisting entitlement to legal professional privilege in communications between MAH and the testatrix might have survived her death and, by transmission, vested in her legal personal representative: Dunesky v Elder (1992) 107 ALR 573 at 575-576. The identity of that representative (presently a choice between the plaintiff and the defendant) is at issue in these proceedings. That fact reinforces characterisation of MAH as a witness of the Court, independent of any party.
The documents the subject of contest throw light on statements made by MAH in her principal affidavit (affirmed 14 August 2013) about execution of the wills (respectively dated 2009 and 2010) witnessed by her.
Leaving aside particular revision of her initial statements, significance may attach to the method by which her affidavit was prepared . It seems, in large measure, to have been a reconstruction of her file, prepared by the plaintiff's solicitor, supplemented by a subsequent, written interrogation of MAH by the plaintiff's solicitor with the benefit of counsel's advice.
I intend no criticism of the plaintiff's lawyers in the way MAH's affidavit was prepared; but the methodology used in its preparation suggests that it is necessary to have regard to the process of reconstruction and interrogation in order to appreciate the contents of MAH's statements .
That is true notwithstanding MAH's affirmation (on 20 May 2015) of a supplementary affidavit designed to deal with factual inaccuracies discovered in MAH's early correspondence with the then solicitor for the defendant and in her first affidavit.
Whether or not MAH was too close to the plaintiff and his wife to provide truly independent advice to the testatrix is a question likely to be explored at a final hearing of the principal proceedings; but, as a prospective witness at that hearing, from an early stage of these proceedings MAH appears to have been treated by the plaintiff and the defendant's solicitor alike as an independent witness, accessible to both sides of the record.
A fair inference from the correspondence between the plaintiff and the defendant's solicitor is that, in the early days of the defendant's investigation of what had occurred in the testatrix's making of the 2009 and 2010 wills, the plaintiff was kept apprised of the substance of ongoing communications between MAH and the defendant's solicitor. MAH's production to the Court of correspondence between herself and the lawyers subsequently retained by the plaintiff demonstrates an even-handedness that, in the particular circumstances of this case, the defendant's lawyers had been encouraged to expect.
By a letter dated 28 November 2013 the defendant's then solicitor provided the plaintiff's solicitor with notice of the subpoena dated 13 November 2013 pursuant to which MAH produced documents that included those now the subject of contest. The subpoena explicitly called for production of, inter alia, "all drafts, notes, or other documents of the affidavit [of MAH dated 14 August 2013] as attesting witness to [the 2009 and 2010 wills of the testatix]".
By a letter dated 29 November 2013 the plaintiff's solicitor asked the solicitor for the defendant to identify "the authority to support the proposition that the drafts are not covered by the ordinary claim for privilege" and stated that, in the meantime, the plaintiff maintained a claim of privilege over those documents.
By a letter dated 3 December 2013 the defendant's solicitor responded substantially in the following terms: "My counsel advises the plaintiff relies upon the statement contained in the 17th edition of Williams Mortimer & Sunnucks to the following effect, namely: 'Attesting witnesses are not the witnesses of any party but of the Court. In that capacity it is their duty to give to any party who asked for it an account of the circumstances in which the Will was executed. The evidence of attesting witnesses is of course often of great importance on issues of testamentary capacity, knowledge and approval, and undue influence. In a probate claim the Court is entitled to see statements as to the execution of the Will even though obtained by the solicitor for a party and otherwise privileged.' Counsel advises the same text appears in the 20th edition (Feb 2013) of the same volume at paragraph 38-10. Counsel advises the plaintiff also relies on the English probate case of Re Fuld (1965). Council advises this authority has been applied continuously in Australia. I trust the foregoing responds appropriately to your enquiry."
The plaintiff's solicitor did not respond until 14 January 2014, on which date she wrote a letter to the defendant's solicitor that included (with apologies for delay) a joinder of issue on the parties' dispute about the scope of the rule in Re Fuld: "It is our view [with the benefit of counsel's advice that particular provisions of the subpoena addressed to MAH] encroach upon the privilege attached to the documents sought [in the subpoena], notwithstanding the decision in Re Fuld [1965] P 405. Accordingly we are instructed to maintain the claims for privilege we have already made on behalf of our client. As we read the decision in Re Fuld's case the application and scope of the 'rule' in Fuld's case usually arises for consideration in the context of applications for grants in solemn form where the formal validity of a will is in issue. It also appears that most of the cases in which the rule in Fuld's case is considered arise where the applicant for the grant in solemn form has not filed and served statements by attesting witnesses. Clearly that is not the case here. Firstly, your client has not put in issue the formal validity of the wills our client is propounding. Secondly, our client has obtained, filed and served sworn evidence from the attesting witnesses. Further, it is clear that the rule in Fuld's case is confined to evidence of attesting witnesses directed to execution and attestation. The scope of that rule was considered by Young J (as he then was) in Gordon v Hilton (unreported) 13 October 1995 BC 9501693. At page 3 of his judgment in Gordon's case Young J said: 'Re Fuld is a decision of Scarman J. It is clear that it is a case limited to a dispute as to whether statements collected by solicitors dealing with execution and attestation of a will were covered by privilege. The other two cases referred to in my decision in Graham's case do not assist the instant enquiry because they were cases where a person sought to cross examine attesting witnesses which he himself had called. Although the passage from which I have quoted in Graham's case is widely expressed, I did not intend to depart from the law as stated in Re Fuld. Indeed, the contest in Graham's case was whether the Fuld rule was applicable to Australia. The ratio decidendi of the case is that it was so applicable. There is nothing in any other part of the decision to suggest that the Fuld rule is applicable in Australia in any expanded form. Accordingly, the only statements from the attesting witnesses which are exempt from the usual privilege are the statements of the witnesses made with respect to attestation or execution. Any other statements including, for instance, a general history of the family or a set of observations as to the health or possible eccentricities of the testatrix would be outside the scope of the Fuld exception. Accordingly, the plaintiff is not entitled to any further discovery. [Emphasis added]'. In our respectful opinion the way in which you contend for the application of the rule in Fuld's case is in the expanded form which Young J expressly ruled against. Would you please advise whether you still press for the documents in respect of which our client claims privilege?"
It was on or about 17 December 2013 that MAH produced documents to the Court (including those the subject of present contest) in answer to the subpoena addressed to her. The evidence is imprecise as to the timing of inspection of the documents by the defendant's solicitor; but a Registrar of the Court made a general access order on 27 May 2014; by a letter dated 4 August 2014 the defendant's solicitor requested production of documents in terms that manifested knowledge of the documents now under contest; and the solicitor for the plaintiff deposes that it was not until August 2014, through accessing the Court's online Registry list of subpoenaed documents, that she became aware that the defendant had obtained access to all the documents produced to the Court by MAH.
Shortly after that time, the defendant terminated the retainer of her solicitor and instructed a new firm.
The plaintiff's application to "re-privilege" the disputed documents (Exhibit P3) fails at the threshold because I am not satisfied, on the facts, that the documents were brought into existence in circumstances in which an entitlement to confidentiality (a necessary element for proof of an entitlement to privilege) attached to them in favour of the plaintiff.
On an assumption that privilege did attach to them but for the rule in Re Fuld, the present attempt by the plaintiff's solicitors to urge upon the Court a narrow interpretation of the rule is correct insofar as it identifies the field of operation of the rule as, prima facie, statements of a witness made with respect to attestation or execution of a will. It is, however, misconceived in its attempt to limit the operation of the rule to applications for a solemn form grant, where the formal validity of a will is in issue, and the applicant for a grant has not filed or served statements by attesting witnesses. It fails to pay due regard to identification of an attesting witness as a witness of the Court, and in its endeavour to erect a shield of private legal professional privilege (or a necessity for a challenge to the formal validity of a will) between such a witness and the Court. The rationale for the rule in Re Fuld does not allow such impediments to be placed in the Court's way.
As illustrated by Re Webster, deceased [1974] 1 WLR 1641; [1974] 3 All ER 822 considerations of fairness may require that the Court, in management of the evidence of an attesting witness, allow examination of the witness (in the character of a witness of the Court) beyond the topic of attestation or execution of a will and extending, for example, to questions about testamentary capacity.
Characterisation of an attesting witness as a witness of the Court lies at the heart of the rationale of the rule, and provides a foundation for control by the Court of access to the evidence of such a witness. In probate proceedings the availability of such evidence is subject to the Court's case management regime, and the purposive character of the jurisdiction of the Court, directed to facilitating the due and proper administration of a particular estate.
In this case the parties initially proceeded, consensually, upon a course that played due regard to MAH's role as an independent witness, a witness of the Court. She appears to have accepted, and to have acted upon the basis that she was obliged to act in a manner consistent with, that role. Only after the plaintiff retained separate lawyers to act upon his behalf was there an attempt by him, or on his behalf, to depart from the parties' assumption as to how MAH's evidence should be dealt with. They may not have been aware, or fully appreciative of the force, of the convention for communications with MAH early adopted by the defendant's solicitor, the plaintiff and MAH. In my opinion, it was not open to the plaintiff, in the circumstances of the case, to enforce such a unilateral departure from the parties' own protocol without a timely application to the Court for case management directions.
In the circumstances of the case, the defendant occupies a position, as a result of inspection of the contested documentation, it would be unfair to her (and an impractical impediment to the orderly conduct of the principal proceedings) to order that the documents be delivered up to the plaintiff.
Accordingly, even if (contrary to my findings) the subject documents had been privileged, the appropriate order is that the plaintiff's application for documents to be "re-privileged" be dismissed: Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at 320 [49].
The evidence of an attesting witness, as a witness of the Court, is in the control of the Court. An attesting witness, in that character, is not in the service of any adversarial party. MAH appears to have been conscious of that in the preparation of her affidavits, whatever (if any) criticism may attend her attendances on the testatrix or her proximity to the plaintiff and his wife.

The Plaintiff's Application for Notices to Produce to be set aside

In exercise of the Court's control of the case management process in preparation of a contested probate suit for final hearing, and having regard to the detailed affidavits filed in the principal proceedings by or on behalf of the plaintiff, and to the ulterior purpose hitherto pursued by the defendant in seeking the production of further documentation en mass, the appropriate course, at this stage of the proceedings, is to order that the defendant's contested notices to produce be set aside pending fresh consideration of the pleadings.
During the course of argument on the plaintiff's motion his counsel conceded that particular classes of document, earlier contested, would now be made available voluntarily.
I do not intend, by setting aside the defendant's notices to produce, to prevent any such voluntary disclosure of documents.
What I intend to achieve is to require clarification of the real issues in the principal proceedings, by insisting that fresh attention be given to the pleadings, as a pre-condition for access to the Court's processes for discovery.
In inviting the parties to give fresh attention to the pleadings, I do not propose to countenance joinder of MAH in the principal proceedings or any application for amendment of the defendant's pleadings to plead a case for compensation for "professional negligence", however defined, against any person.
Any application for amendment of the pleadings will, as it must, be determined on its merits, if and when made. As presently apprised of the defendant's case, however, her contentions seem to me to be able to be accommodated within the ambit of established grounds for contesting a will (testamentary incapacity, a lack of knowledge and approval, fraud, undue influence and suspicious circumstances), subject only to clarification of the nature of any allegation of undue influence maintained.
I do not exclude the possibility that the defendant might renew her application for the production of particular documents after due consideration has been given to reformulation of the pleadings. Nor do I invite, or anticipate, such an application. It is enough to rule that, at this stage of the proceedings, in circumstances in which the defendant is trying to expand the proceedings beyond their proper ambit, the appropriate course is to bring her cascading demands for the production of documents to an end, and to refocus attention on the pleadings.
The interests of justice would not be served by the defendant being allowed, through a process of discovery of documents, to continue to interrogate the plaintiff about ongoing communications between him and MAH.

Ancillary Case Management Issues

Subject to allowing the parties an opportunity to be heard, in case I have overlooked something of significance, I am inclined to the view that the proceedings are substantially ready for the allocation of a hearing date.
However, before any such date is allocated, attention may need to be given to four topics. First, the defendant needs to review her pleadings to define her case with greater precision, without giving way to a temptation to advance allegations foreign to the purpose for which probate proceedings are ordinarily entertained. Secondly, if the defendant seeks the imposition of a trust on any benefits taken by the plaintiff's wife under a will admitted to probate, she will need to give consideration to joinder of the wife as a party to the proceedings. Thirdly, the defendant needs to crystallise any proposal she may seek to advance for a grant of leave to adduce expert evidence going to the issue of the testatrix's testamentary capacity. Fourthly, consideration needs to be given to whether these proceedings are, or are not, an appropriate vehicle for entertaining the defendant's alternative claim for family provision relief absent an order under UCPR rule 28.2 for the earlier, separate determination of all other questions.
The defendant needs to focus attention on what is meant by her allegation of "undue influence".
That allegation is presently pleaded and particularised without any element of "coercion" traditionally regarded as necessary for a finding of undue influence in probate. If a case of coercive undue influence is to be advanced, it needs to be articulated.
If anything in the nature of an allegation of "fraud" (including an allegation of misleading or deceptive conduct) is to be advanced, it should be separately pleaded and particularised.
As the defendant's case presently stands, her allegation of "undue influence" appears to be limited to an allegation of undue influence in equity which, but for the observations of the High Court in Bridgewater v Leahy (1998) 194 CLR 457 at 474-475 and a factual matrix involving conferral of a testamentary benefit on a solicitor, would be liable to be struck out.
In the absence of any strikeout application at an earlier stage of the proceedings, and in circumstances in which detailed evidence has been filed bearing upon the relationships of the plaintiff and his wife with the testatrix, the present proceedings appear to be an appropriate vehicle within which to test the interconnection, if any, between the historically different concepts of "undue influence" in the probate and equity jurisdictions.
If the defendant proposes to run the principal proceedings with that end in mind, it would be desirable, although (having regard to CPA section 90 and UCPR rule 36.1) not perhaps necessary, to include as a prayer for relief, for example, a claim for a declaration that any entitlement that the plaintiff or his wife may have under a will of the testatrix admitted to probate is held on trust for the defendant as the person entitled to the testatrix's estate as a residuary beneficiary or as the person entitled on an intestacy.
As presently advised, I do not see any necessity, or justification, for assimilation of "equitable undue influence" in the concept of "probate undue influence"; but neither do I apprehend that an application of equitable principles, as a supplement to an exercise of probate jurisdiction, in the manner contemplated by the High Court in Bridgewater v Leahy is beyond what is fairly arguable.
In principle, an exercise of equitable principles is no less able to moderate the operation of probate law than it is able to moderate the operation of the common law. In the former case, as in the latter, equity could be said to have "come not to destroy the law, but to fulfil it": FW Maitland, Equity: A Course of Lectures (Cambridge University Press, revised, 1936), page 17. Equitable principles are "a living resource" (to quote PW Young, C Croft and ML Smith, On Equity (Law Book Co, 2009), paragraph [1.100]) adaptable, over time and space, in the service of the administration of justice. Their application in contemporary Australian society may differ from their application in nineteenth century cases conducted in England, or Australia.
It is not necessary to embrace academic calls for a modified doctrine of undue influence in probate cases (Fiona Burns, "Elders and Testamentary Influence in Australia" (2005) 28 UNSW Law Journal 1), although such an outcome might ultimately emerge from an application of equitable principles in probate contests; but there is arguably (as Pauline Ridge suggests in "Equitable Undue Influence and Wills" (2004) 120 Law Quarterly Review 617) scope for the imposition of a trust, after probate is granted, in the interests of subjecting inter vivos and testamentary gifts to substantially the same operational rules.
That there is scope for debate in this area is confirmed by the observation that, as early as 1986, Justice Frank Hutley (a leading probate lawyer in NSW) suggested that equitable principles, including presumptions of influence, should be introduced into the law of wills because the strict law of probate tends to permit, if not to encourage, pressure on will-makers, particularly the old and feeble: NSW Law Reform Commission, Report 47 (1986)-Community Law Reform Programme: Wills-Execution and Revocation, paragraphs [8.31]-[8.35].
In 2013, the Law Institute of Victoria made a submission to the Victorian Law Reform Commission's Inquiry into Succession Laws advocating that "the equitable doctrine of undue influence should be applied to wills" because "[the] current law [of probate] is ineffective, demonstrated by the paucity of Australian cases": paragraphs W11-W12.
In chapter 2 of its Report dated 15 October 2013, entitled Succession Laws, the Victorian Law Reform Commission: drew attention (in paragraphs [2.75]-[2.83]) to legislation, then about to become operative in the Canadian province of British Columbia, designed to introduce the equitable doctrine of undue influence in the probate context; recorded arguments for and against such a change; and recommended that the operation of the new Canadian legislation be kept under active review for a period of four years with a view to its adoption in Victoria being further considered.
If, as I apprehend, this debate is to be engaged by the defendant the parameters for the debate should be specifically pleaded and particularised, in fairness to the plaintiff (and, particularly if formally joined as a party, his wife), and for the more orderly conduct of the proceedings.

CONCLUSION

Subject to allowing the parties an opportunity to be heard about case management of the proceedings and the costs of the motion, I propose to give effect to the rulings made in this judgment by orders setting aside the defendant's notices to produce (so far as they remain contested), together with an order that paragraph 2 of the motion be dismissed.
My present inclination is to order that the costs of the motion be the parties' costs in the proceedings.
When the parties have had the opportunity to digest the judgment, I will endeavour to give directions for case management of the proceedings directed towards allocation of a date for a final hearing without further undue delay.

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: 17 December 2015

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