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[2025] ACTSC 304
General information, not legal advice.
Supreme Court of the ACT
2025-07-16
Elkaim AJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Copeland v Ellis and Hall
Citation: [2025] ACTSC 304
Hearing Date 14 July 2025
Decision Date: 16 July 2025
Before: Elkaim AJ
Decision: See [33]
Catchwords: CIVIL – SUCCESSION – Wills, Probate and Administration– Application for executors to start proceeding for grant of representation in solemn form – weak suspicious circumstances – application dismissed Legislation Cited: Court Procedure Rules 2006 r 3113 Cases Cited: Dickman v Holley; Estate of Simpson [2013] NSWSC 18
Parties: Brian Roy Copeland (Applicant) Donna Lea Ellis (Respondent) Rachael Ellen Hall (Second respondent) Representation: Counsel T Catanzariti (Respondents)
Solicitors A Chakrabarty (Applicant) V Shea (Respondents)
File Number: SC 81 of 2025 ELKAIM AJ:
Introduction:
This matter concerns the will of Malcolm Graeme Copeland (the deceased) dated 17 February 2022. The deceased died on 14 January 2023. Probate of the will was granted on 1 March 2023 to the executors of the will.
On 12 March 2025 Mr Brian Copeland filed an originating application seeking an order under r 3113 of the Court Procedures Rules 2006 (the CPR) that the executors “bring the grant of representation into the registry” so that the executors would then be bound to “start a proceeding for grant of representation in solemn form.”
On 2 April 2025 the respondents, the executors, filed an application in proceeding seeking an order that the plaintiff’s claim be struck out “on the basis that it discloses no reasonable cause of action because the Plaintiff has no interest in the Deceased’s estate or the administration of the Deceased’s estate”.
The reasoning behind the respondents’ application is that r 3113 says that an application of the type brought by the plaintiff can only be brought by a person who “has an interest in the estate or a reasonable prospect of establishing an interest.”
The plaintiff is the deceased’s brother. He is the only living relative. He would inherit the deceased’s estate on intestacy.
Notwithstanding the plaintiff’s position it is common ground that if the will is valid then the plaintiff does not have an interest.
The plaintiff’s case is that he does not know for certain if he does have an interest but there is enough by way of suspicious circumstances to raise doubt about the will. If he can establish a prima facie basis for the suspicious circumstances then his application should succeed.
The plaintiff’s identification of suspicious circumstances are threefold:
(a) the respondents are the executors and receive the entire estate (equally between them).
(b) The respondents indicated that they had no material within certain categories of discovery but later produced a series of text messages contradicting their initial assertion.
(c) The text messages are themselves suspicious and raise a possibility that the respondents played a part in the preparation of the will.
In addition, the plaintiff asserts that the solicitors for the respondents acted inappropriately in failing to inform the court that there was an issue concerning probate. Had the court been informed it would have required probate be proved in solemn form. As will be seen below, this complaint is without merit.
The plaintiff relied on his affidavits of 12 March 2025 and 21 April 2025 respectively and the affidavit of his solicitor, Mr Jerry Chou dated 14 April 2025. The respondents relied on the affidavits of their solicitor, Ms Vivian Shea, dated 16 April 2025 and 5 June 2025 respectively. Some background
As already noted, the plaintiff is the brother of the deceased. The plaintiff, then aged about six months, was adopted by Mr Roy Copeland and Mrs Vera Copeland in 1953. The deceased was born to Mr and Mrs Copeland on 25 January 1954.
The deceased never married, had no partner and no children. Although not always living in the same area, the plaintiff and the deceased seemed to have a good relationship in which they were regularly in contact.
The deceased was also known as Michelle Grace Copeland. According to the plaintiff the deceased, in his later years, openly identified as a female. The deceased seems to have suffered a good deal of ill-health and was in hospital from time to time. He was admitted to hospital with pneumonia shortly before his death on 14 January 2023.
The plaintiff says that prior to the deceased’s death he had never “met or heard of either” of the respondents.
In his second affidavit the plaintiff relates an incident, on the date of the deceased’s death, when he was contacted by the NRMA about an alarm sounding at the deceased’s home. It seems that one or both of the respondents were in the home and would probably have entered without deactivating the alarm. This was said to be a suspicious circumstance. It is equally consistent with the respondents, as executors, securing the deceased’s estate. The same applies to the changing of the locks at the residence.
The plaintiff gives some other examples of what he considers to be unsympathetic conduct on the part of the respondents, but I do not take much from the assertions.
The plaintiff’s case
The plaintiff asserts that the respondents should not have applied for a grant of probate because they knew that the plaintiff had concerns about the will. There had been correspondence, but the correspondence is characterised by the plaintiff’s solicitors apparently not wishing to give very much away and persistently not providing details of the plaintiff’s concerns. This extended all the way through to 16 April 2025 when the respondent’s solicitors wrote to their counterparts asking “on what basis your client is challenging probate”. The plaintiff’s solicitors never responded.
I do not think there has been any improper conduct on the part of the respondents’ solicitors. Perhaps if the plaintiff’s lawyers had been more forthcoming there might have been more comprehensive responses and perhaps different actions.
Also I think it would have been appropriate for the grounds of the originating application to have included the allegation concerning the validity of the will.
Rule 3113 places the onus on the plaintiff to establish that he has a sufficient interest in the administration of the estate. He would have a sufficient interest, as a brother who would inherit on intestacy, if there was any suggestion of invalidity in the will.
The plaintiff said he did not need to prove that the will was invalid at this stage, only that there was a prima facie case to that effect.
The plaintiff submitted that there was enough of a suspicion to raise the prima facie case. The suspicion was derived from the incorrect answers to preliminary discovery, equivocal text messages and the respondents’ position as sole beneficiaries.
I do not think there is any substance in the answers to the preliminary discovery. It is true that the answers are theoretically incorrect, but any ‘harm’ was soon overcome by the production of the text messages. I also note that the preliminary discovery order was made by consent.
Each side gave its own interpretation of the text messages, each leading to an opposing conclusion. According to the plaintiff the text messages indicated a close interest by the respondents in the making of the will and a power of attorney. According to the respondents, a proper reading of the messages is equally consistent with friends helping the deceased, such as taking him to a solicitor, when he was ill.
The respondent submitted that some of the messages actually reinforce a conclusion that the contents of the will were dictated by the deceased. For example, there is this message:
“The estate lawyer has sent me draft copies of will and poa until i study them more closely i won’t be in a position to make a appointment so whatever movie time suits you is fine.’
“There is one rule which has always been laid down by the Courts having to deal with wills, and that is that a person who is instrumental in the framing of a will, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will is read over to the testatrix, and that she was of sound mind and memory and capable of comprehending it. But there is a further onus upon those who take for their own benefit after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of showing the righteousness of the transaction: Fulton v Andrews [1875] LR 7 HL 448.'”
There is no doubt that the respondents receive “a bounty” from the deceased’s will, leaving the question of whether or not they had been “instrumental in the framing” of the will. The asserted instrumentality is said to arise from the text messages.
In my view there is a difference between a prima facie case and a hint or ‘whiff of smoke’ which arises from the text messages. There is nothing in the messages to suggest that the respondents had anything to do with the formation of the will. At best they seem to text about the will and about the solicitor. There is no suggestion of what the will should contain, of which solicitor should be used, of the respondents actually seeing a solicitor or any other provocative act.
There is simply not enough. I also note that the plaintiff chose not to subpoena the records of the solicitors that drafted the will. There is not even any enquiry of the solicitors, Capon & Hubert Lawyers, who I note are local to the ACT. Their records would have revealed, if only through file notes, any contact or participation with the respondents.
I gave a list of affidavits relied upon by the parties above. It is to be noted that there is no affidavit evidence relied upon from the respondents. This absence in some circumstances might have given rise to an inference that their evidence would not have assisted their case. However, in this matter I decline to draw any inference because of the plaintiff’s approach to not provide details of the allegations against the respondents either in the originating application or subsequent correspondence.
Had the applicant stated in the originating application that the will was suspicious the respondents might well have put on evidence.
Finally, I observe that if the plaintiff is truly suspicious of the respondents conduct, he has the option to seek revocation of the will.
Accordingly, the originating application must be dismissed. As to the respondents’ application in proceeding filed on 1 April 2025, I think it was superfluous. Either the plaintiff was going to succeed on his application or not.
I make the following orders:
(1) The originating application filed on 12 March 2025 is dismissed.
(2) The plaintiff is to pay the defendant’s costs.
(3) The costs order made in the previous order is not to include any costs associated with the respondents’ application in proceeding filed on 1 April 2025.
I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim.
Associate: N Dwyer
Date: 17/07/2025
Copeland
Ellis and Hall [2025] ACTSC 304