Cultural Shifts in NSW Probate Practice
145English legal history tells a story of accommodation between church and state in which the Crown, for a long time now passed, acquiesced in ecclesiastical courts exercising jurisdiction over the administration of areas of the law (especially family and probate law) of special interest to the church: JH Baker, An Introduction to English Legal History (Butterworths Lexis Nexis, London, 4th ed, 2002), pp 126-132 and 386-387; WS Holdsworth, A History of English Law, vol 1 (7th ed revised), pp 614-615 and 625-630.
146This was at a time when the law was generally thought of in terms of court process, practice and procedure leading to a remedy (especially common law forms of action) rather than abstract principles governing the availability of a remedy.
147It was not until about 1857 that, in England, the probate jurisdiction was transferred to a secular court. In 1875, upon commencement of the Judicature Acts of 1873 and 1875 (UK), it was transferred to the High Court of Justice, the English equivalent of the Supreme Court of NSW.
148Only in the 19th century did English jurisprudence (and, in its wake, Australian law) generally shift away from action-based analyses of law, towards a perception of law in terms of "scientific principles" governing subject areas straddling the jurisdictional or conceptual limits of forms of action: AWB Simpson, "The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature" (1981) University of Chicago Law Review 632, reprinted in AWB Simpson, Legal Theory and Legal History: Essays on the Common Law (Hambledon Press, London, 1987), chapter 12.
149This trend appears not to have affected writing about probate law and practice as much as other areas of the law. The passage of the Wills Act 1837 (UK) - a turning point in the English law of wills and, in time, that of New South Wales - was accompanied by a change in the form of practice texts, to be sure. However, when they came, the new texts continued to rely heavily on their predecessors.
150Probate texts have not entirely broken their action-based mould. In part, that may be because a grant of probate or administration serves, in practical reality, as an instrument of title. It is readily perceived as more than merely a court order.
151The earliest editions of Williams on Executors and Administrators, a seminal English text, `appeared in 1832 (1st edition), 1838 (2nd edition) and 1841 (3rd edition); the 1st edition of Mortimer on Probate, with which Williams was combined in 1982, did not appear until 1911. The 1st edition of Jarman on Wills appeared in 1844. The 1st edition of what became Tristram and Coote's Probate Practice (by Coote alone) was not published until 1858, consequentially upon the transfer of English probate jurisdiction to a secular court in 1857.
152Throughout the 19th century practice texts on the law of probate in England continued expressly, in their treatment of the forms in which probate might be granted, to take their colour from Henry Swinburne, A Brief Treatise of Testaments and Last Wills (1st ed, 1590; 7th ed, 1803) Part 6 Section 14, either directly or through John Godolphin, The Orphan's Legacy, A Testamentary Abridgement, in Three Parts. I. Of Last Wills and Testaments. II. Of Executors and Administrators. III. Of Legacies and Devises (1st ed, 1673; 4th ed, 1701), Part 1 Chapter 20 Section 4.
153The following extract is taken from the first (1590) edition of Swinburne, adapted by omission of marginal notes and use of modern spelling:
"OF THE OFFICE OF AN EXECUTOR
The Sixth Part...
Of the manner of proving Testaments.
1. The form of proving testaments, is twofold.
2. Of the vulgar form.
3. Of the form of law.
4. Of the difference betwixt the vulgar and the legal form. ...
xiv
[1] That it is necessary for the proof of testaments, that there be either witness or writing, is already declared: Also what number of witnesses, and what manner of writing is sufficient, is likewise declared: wherefore in this place, I shall not need to speak, saving only of the manner of proceeding in the probation and approbation of testaments.
This manner and form therefore here in England, is of two sorts, the one is called the vulgar or common form, the other is termed, the solemn form, or form of law.
[2] The vulgar or common form, is more compendious or brief than the other: For after the death of the testator, the executor presenteth the testament to the Judge, and in the absence, and without citing or calling of such as have interest, produceth witnesses to prove the same, who testifying upon their oaths (viva voce) that the testament exhibited, is the true, whole and last testament of the party deceased: The judge doth thereupon, and sometimes upon lesser proof, annex his probate and seal to the testament, whereby the same is confirmed.
[3] When the testament is to be proved in form of law, it is requisite that such persons as have interest (that is to say) the widow and next of kin to the deceased, to whom the administration of his goods ought to be committed, if he had died intestate, are to be cited to be present at the probation and approbation of the testament, in whose presence the will is to be exhibited to the judge, and petition to be made by the party which prefereth the will, and enacted for the receiving, swearing and examining of the witnesses upon the same, and for the publishing or confirming thereof: whereupon witnesses are received, and sworn accordingly, and are examined every one of them secretly, and severally, not only upon the allegation or articles made by the party producing them: but also upon interrogations ministered by the adverse party, and their depositions committed to writing: afterwards the same be published, and in case the proof be sufficient, the Judge doth by his sentence or decree, pronounce for the validity of the testament.
[4] Which two forms being compared together, we may easily perceive the differences betwixt the one and the other: of which differences, I suppose this to be of the greatest moment, that in the vulgar form, such as have interest are not cited to be present at the probation of the will, whereas observing the form of law, they are to be cited to that end: which difference of form worketh this diversity of effect, namely that the executor of the will proved in the absence of them which have interest, may be compelled to prove the same again in due form of law. And if the witnesses be dead in the mean time, it may endanger the whole testament, especially if ten years be not passed since the probation, whereby necessary solemnities are presumed to have been observed: whereas the testament being proved in form of law, the executor is not to be compelled to prove the same any more: and although all the witnesses afterwards be dead, the testament doth still remain his full force. ..."
154The following extract is taken from the first (1673) edition of Godolphin, again omitting marginal notes and using modernised spelling:
"PART I. Of Last Wills and Testaments...
Chapter XX
Of the Probate of Testaments
1. Where, and before whom the Will is to be proved.
2. By whom, and at whose instance the Will is to be proved.
3. When is the Will to be proved.
4. How and in what manner is a Will to be proved. ...
4. A Testament after the Testators death and not before may be Proved either in Common Form; as when the Executor presenting the Testament before the Judge, without citing the interested, doth depose the same to be the true, whole, and Last Will and Testament of the deceased, and whereupon the Judge doth annex his Probate and Seal thereunto: Or in form of Law, as when the Widow or next of Kin to the deceased are cited to be present, in whose presence the Will is exhibited before the Judge, whereupon Witnesses being produced, received, sworn, examined, and their depositions published, the Judge in the case of sufficient proof doth pronounce for the validity of the Testament. Now he that Proves but in Common Form, may be compelled to Prove the same again in form of Law; but being once to Proved the Executor is not compellable to Prove it anymore; but being Proved only in Common Form, it may be questioned at any time within thirty years next after, by common Opinion before it work prescription, which is otherwise in case it be Proved in Form of Law or per Testes...."
155A difference between Swinbourne and Godolphin which is noticed, but not resolved in some 19th century texts, is whether a presumed "limitation period" or, perhaps more accurately, a "period of prescription" should be regarded as 10 years or 30 years.
156It is not necessary here to do more than notice the discrepancy. It may provide an historical explanation for 19th century judicial pronouncements that lapse of time is not, of itself, a bar to an application for revocation of a common form grant, as is suggested by the headnote in In re Goode (1890) 11 NSWR (Eq) 281.
157Of greater moment is the emphasis given, in both Swinbourne and Godolphin, to the citation of interested persons, and the intensity of the evidentiary process, in distinguishing between common and solemn form grants.
158Another feature of both Swinbourne and Godolphin worthy of notice, in passing but without verbatim illustration, is the necessity they felt to record that the task of proving a will on the petition of an executor, or other interested person, is to be performed after, not before, the death of the testator. Their observations reflect times in which proof of death, with a shifting population, could be more problematical than is presently the case. One of the incidents of this was recognition that the timing, manner and method of proving a will depended in large measure upon an exercise of discretionary judgement of a Judge.
159Traces of Swinburne or Godolphin (including almost formulaic repetition) can be found, for example, in:
(a)Richard Burn, The Ecclesiastical Law (1st ed, 1760; 8th ed, 1824; 9th ed, 1844) at pp 315-316 in the 9th edition.
(b)Matthew Bacon, A New Abridgement of the Law (1st ed, 1735-1766; 7th ed, 1832) at pages 464-466 of volume 3 of the 7th (1832) edition.
(c)EV Williams, Treatise of the Law of Executors and Administrators (1st ed, 1832; 14th ed, 1960), Part 1 Book IV Section III in the 1st edition.
(d)WG Walker, A Compendium of the Law Relating to Executors and Administrators (1st ed, 1880; 6th ed, 1926) at pp 28-29 in the 1st edition and pp 36-37 in the 6th edition.
160Walker emigrated to New South Wales in 1882, took silk here in 1896 and served as the Probate Judge of this Court between 1898-1906. A companion volume to his compendium(WG Walker and EJ Elgood, The Law and Practice Relating to the Administration of the Estates of Deceased Persons (1st ed, London, 1883)) was a standard text prescribed for study by Sydney Law School until 1938, at about which time it was displaced by FR Jordan's Law School Notes: Administration of the Estates of Deceased Persons (1st ed, 1935; 2nd ed, 1940; 3rd ed, 1948), a supplement to the author's Chapters on Equity in New South Wales (2nd ed, 1921; 6th ed, 1947).
161Sydney was the only Law School in New South Wales between 1890-1970. By the commencement of World War I it had established itself as the institution through which most New South Wales lawyers received their undergraduate training. English training for undergraduates, comparatively, fell away in the pre-war years as the Law School became established.
162Until the 1960s, local NSW works on probate law and practice took the form of annotations of local legislation or rules of court: eg, TW Garrett, The Ecclesiastical Practice, with Standing Rules and Notes Thereon, Forms of Procedure (CF Maxwell, Sydney, 1889); TW Garrett and WA Walker, The Probate Act of 1890 (Hayes Bros., Sydney, 1893); WA Walker and HB Bignold, Wills, Probate and Administration Act 1898 (Law Book Co, 1903), a successor to Garrett and Walker ; RE Kemp, Wills, Probate and Administration (Law Book Co, Sydney, 1st ed, 1906; 2nd ed, 1919; 3rd ed, 1926); AB Sheldon and JF Molloy, Probate Forms and Precedents, with Notes on the Practice and Procedure in the Supreme Court of New South Wales (Law Book Co, Sydney, 1924); R Hastings and G Weir, Probate Law and Practice (Law Book Co, Sydney, 1st ed, 1939; 2nd ed, 1948).
163The first (1939) edition of Hastings and Weir was a new work, presented to the public as a successor to Kemp, with an express acknowledgement of Kemp as a source: see "Preface".
164The high regard in which the second (1948) edition of Hastings and Weir is still held may owe something to the formative influence it had on law students for whom it was an authoritative text in the 1940s, '50s and '60s.
165Something similar might be said for the high reputation of the first (1911) edition of CH Mortimer, The Law and Practice of the Probate Division of the High Court of Justice (Sweet & Maxwell, London). Mortimer was a prescribed text at Sydney Law School between 1939-1956 or thereabouts.
166In the Law School's 1967 Handbook the second (1927) edition of Mortimer was recommended as an "excellent" reference book "for more detailed study" than available in prescribed texts. However, before the year was out, the Court of Appeal's judgment in Bates v Messner (1967) 67 SR (NSW) 187; 86 WN (Pt 2) (NSW) 35 must be taken as having qualified that assessment by declining to follow Mortimer's restrictive view of the grounds upon which a grant may be revoked.
167For an academic treatment of the law of succession, Sydney Law School turned to English texts immediately following World War II. In 1948, students were prescribed SJ Bailey, The Law of Wills (1st ed, 1935; 7th ed, 1973). In and after 1949 (when FC Hutley commenced a run as the University's part-time Lecturer in Succession that continued until 1971), the prescribed text was DH Parry, The Law of Succession, Testate and Intestate (2nd ed, 1947; 5th ed, 1966).
168FC Hutley and RA Woodman published the first edition of their Cases and Materials on Succession (Law Book Co, Sydney) in 1967. In 1970 Hutley published the first edition of his Australian Wills Precedents (an adaptation of an English publication), now in its 8th (2014) edition.
169Narrative treatments of local law began to emerge, in the 1960s and '70s, at about the same time: RA Woodman, Administration of Assets (Law Book Co, Sydney, 1st ed, 1964); IJ Hardingham, MA Neave and HAJ Ford, The Law of Wills (Law Book Co, Sydney, 1977); and IJ Hardingham, The Law of Intestate Succession in Australia and New Zealand (Law Book Co, Sydney, 1978); GL Certoma, The Law of Succession in New South Wales (Law Book Co, Sydney, 1st ed, 1987).
170The first (1967) and second (1975) editions of Hutley and Woodman were published either side of the commencement in 1972 of the Supreme Court Act 1970 NSW, which introduced a Judicature Act system of court administration to this Court. Within the same period, Frank Hutley took silk, accepted appointment to the Court and settled in as a member of the Court of Appeal. He and Woodman were joined by Olive Wood as a co-editor.
171A comparison of the two editions is worthy of notice. In its treatment of grants in common and solemn form, the first edition is more expansive (at pages 224-226) than the second (at pages 206-207), though the two are consistent. The second edition places more emphasis on specific Probate Rules (the new Supreme Court Rules) than the first. The first edition deals with the topic at a slightly more abstract level.
172The following extracts are taken from the first edition (at pages 224-226), omitting the footnotes save for a reference to Osborne v Smith:
"Grants of probate and letters of administration fall into two classes - probate or letters of administration in common form and probate or letters of administration in solemn form. In the great majority of cases, neither the authenticity of the will nor the right to the grant of administration is the subject of contest, and an administrative investigation of the claim is all that is necessary. That is the grant in common form and, even though such a grant results in a reference to the court, it does not lose the defeasibility which flows from this administrative character....
The grant in solemn form, on the contrary, is the result of a contest between those, or some of those, whose interests are adversely affected by the instrument propounded and the propounders. The resulting decision has the indefeasibility of a res judicata, except that it is subject to the anomalous exception that the grant can be superseded by an application for probate of a later will.
Proceedings in solemn form require the solution of problems not associated with proceedings at common law or in equity: (i) the determination of proper parties; and (ii) the investing of the decision with an in rem or quasi in rem character. In a complex situation involving many instruments the court itself is in a position to preside over the selection of the correct adversaries.
An application for a grant of representation in solemn form in the first instance is unusual in New South Wales. Ordinarily a caveat is, or a number of caveats are, lodged against an application for a grant in common form. The applicant then obtains a rule nisi for the removal of the caveat, and on the return of the rule nisi, the judge, if the caveator can show that there is a case sufficient to justify the refusal of an order absolute for the removal of the caveat, directs the way in which, and in particular, the parties between whom, the suit for a grant in solemn form should proceed. As an alternative, the caveator can be summoned to appear to show cause why the caveat should not be removed...
The interests of persons, not actual parties to suits, are provided for by the right of such persons to intervene in the suit [:Osborne v Smith (1960) 105 CLR 153]. Again a party can call upon any person whose interests are, or may be, adversely affected by a decree to appear and take part in the suits. This is effected by obtaining a citation directed to the person or persons concerned to see the proceedings. By these means, the grant in solemn form can acquire a status which closely approximates to that of a decree in rem."
173The rule nisi procedure was abandoned with the commencement of the Supreme Court Rules 1970 NSW, Part 78 of which became a focus for the second edition.
174The following extracts are taken from the second edition (at pages 206-207):
"Proceedings in probate for grant or resealing are divided into two classes - non-contentious proceedings and contentious proceedings.
In New South Wales, non-contentious proceedings are regulated by the Supreme Court Rules, Part 78, Division 3, which applies to proceedings for a grant or for resealing where: -
(a) there is no defendant; and
(b) no person is cited to see the proceedings,
See rule 7 of Part 78.
Contentious proceedings for a grant or for reseal are governed by Part 78, Division 6, but note also Divisions 8, 9 and 10. Where there is a defendant contentious proceedings are commenced by statement of claim, and where there is no defendant by summons: Part 78, rule 36.
The result of contentious proceedings for grant or resealing is a grant or resealing in solemn form, of non-contentious proceedings a grant in common form.
Though it is possible for a grant in solemn form to be obtained without any application being made for a grant in common form, this is unusual. Contentious proceedings usually result from the lodgement in the registry of a caveat, either against the making of a grant or reseal: Part 78, rule 61; or requiring proof in solemn form: Part 78, rule 62.
Unless the caveat has expired: rule 63; or is withdrawn: rules 64, 65; it must be disposed of before a grant will issue. If the caveat is merely to have the grant or reseal in solemn form, the applicant cites the caveator to see the will proved: rule 68.
Where there is/are caveat/caveats against a grant or resealing the applicant may proceed for an order that the caveat or caveats cease to be in force. These proceedings are commenced by summons. Rule 69(4) provides:-
'Where in respect of the caveat, or any of the caveats, the Court considers that the evidence does not show -
(a) that the caveator has an interest in the estate or has a reasonable prospect of establishing such an interest; and
(b) some matter occasioning doubt as to whether the grant ought to be made,
the Court may order that the caveat case to be in force in respect of the intended application.'
If no order is made under rule 69(4), the Court may give directions under rule 69(6).
A grant in common form is revocable at the instance of a person whose interest is adversely affected by it. Proceedings for revocation of a grant are governed by Part 78, Division 7.
A grant in solemn form has the status of a judgment inter partes and has the indefeasibility of a res judicata, except that it is subject to the anomalous exception that it can be revoked if a later will is discovered. Such a grant may be binding upon persons not parties to the proceedings i.e. persons who could, but with knowledge of the proceedings did not, intervene: Osborne v Smith (1960) 105 CLR 153. A person with an interest adverse to the applicant for a grant but who is not a party may be cited to see the proceedings: rule 53. The grant may thus attain the status of an order quasi in rem...."
175References to particular provisions of SCR Part 78 have changed with the adoption of a new Part 78 on 21 January 2013, and a "Citation to see proceedings (old SCR Form 113)" is now a "Notice of Proceedings (SCR Form 140)", but, for present purposes, the structure of the rules is substantially the same now as it was in 1975.
176A second point of comparison between the first and second editions of the case book relates to the following note recorded in the first edition on page 237:
"NOTE
In the Estate of George Hardy (NSW, unreported 31 October, 1966). Myers, J. held, following Mortimer on Probate, 2nd ed, 424, that grants of probate could be revoked on three grounds only: -
1. Where the original grant was made in an irregular manner;
2. Where the grant was made to a person not entitled or unlawfully made;
3. Where the grant has become inoperative or ineffectual.
An appeal is pending in the Court of Appeal."
177Although it is not highlighted in either report of the case, the Court of Appeal's Judgment on appeal from that of Myers J is that better known as Bates v Messner (1967) 67 SR (NSW) 187; 86 WN (Pt 2) (NSW) 35.
178Bates v Messner was followed in Mavrideros v Mack (1998) 45 NSWLR 80, both now leading cases on the jurisdiction of the Court to make a revocation order in the interests of due management of an estate. They adopted a more flexible attitude than that attributed to the English text, Mortimer.
179Myer J's judgment in Hardy (unrep, 31 October 1966), with the strict approach to jurisprudence, practice and procedure for which he was legendary, laid the groundwork for the successful appeal to the Court of Appeal by a client represented by Frank Hutley, shortly before he took silk. That is evident in the following extract of the judgment:
"This is an application to revoke a grant of probate and make a new grant of letters of administration. The executor is a solicitor who has been convicted of misappropriation and has in fact misappropriated a substantial sum of money from this estate. He has consented to the application before me. However, I am of the opinion that I have no power to revoke the grant on those grounds.
It has been long established in this Court and in the Court of Probate in England that grants may be revoked on three grounds only. Those grounds are conveniently summarised in Mortimer on Probate 2nd Edn. p 424. They are:
1. Where the original grant was made in an irregular manner.
2. Where the grant was made to a person not entitled or unlawfully made.
3. Where the grant has become inoperative or ineffectual.
The fact that an executor is a person of bad character or that it appears that the Estate may be in jeopardy if it remains in his hands is no grounds for revoking a grant. The proper procedure in such a case, and it is a procedure frequently followed, is to obtain an injunction to restrain the executor from acting and to appoint trustees of the estate to carry out the executor's duties.
The fact that the executor may have neglected his duties is likewise no ground. It must be shown that the grant has become useless, for example, by supervening insanity or physical incapacity or by the executor having left the jurisdiction and refused to administer the estate. There is no evidence in this case that the executor has refused to administer...."
180Viewed in historical context, Bates v Messner can be appreciated more readily as a local departure from earlier, local perceptions of English probate law and practice. Mavrideros v Mack reinforced the Court's shift away from a rigid administration of the probate jurisdiction dependent upon the intervention of equity to render it practical.
181We are now well served by local works, although reference to English publications remains not uncommon, and we remain tethered, however loosely, to English probate practice going back (at least) to Swinburne and Godolphin.