Estate Kouvakas; Lucas v Konakas

Judgment INDEX I. INTRODUCTION II. BACKGROUND FACTS III THREE SETS OF PROCEEDINGS 1. The Administration Proceedings 2. The Family Provision Proceedings 3. The (Present) Revocation Proceedings IV PRESENTLY AVAILABLE EVIDENCE ABOUT THE CIRCUMSTANCES IN WHICH THE 2011 WILL WAS EXECUTED 1. The daughter's version of events 2. The stepson's version of events 3. The granddaughter's version of events 4. St George Hospital Clinical Notes V. PRINCIPLES GOVERNING REVOCATION OF A GRANT OF PROBATE OR ADMINISTRATION 1. Introduction 2. The Source(s) and Nature of Probate Jurisdiction 3. The Cultural Heritage of NSW Probate Practice 4. Cultural Shifts in NSW Probate Practice 5. English Probate Law and Practice as Received in NSW 6. Diversity in Statements of the Law 7. The Central Purpose of Probate Jurisdiction 8. The Distinction between Common and Solemn Form Grants 9. A Grant bears the character of a Court Order 10. A Grant bears the character of a Title Document 11. The Nature of a Revocation Order 12. The Character and Purpose of a Solemn Form Grant 12.1 The Question of Parties 12.2 The Question of Evidence 12.3 The Court's judgement call 13. Investigation of Title and Building an Estoppel : Due Administration of Estates, Testamentary Intentions and Title to Property 14. Grounds for a Revocation Order 15. A Checklist of Topics for Consideration VI. APPLICATION OF PRINCIPLES TO FACTS VII. CONCLUSION

INTRODUCTION 1By a statement of claim filed in these proceedings (numbered 2013/00322211) on 25 October 2013 the plaintiff (the stepson of the deceased person whose estate lies at the heart of the proceedings) applies, in essence, for: (a)an order that letters of administration, with a will dated 6 August 2011 annexed, granted to the defendant (the daughter of the deceased) on 14 May 2013 (in proceedings numbered 2012/00173956) be revoked; and (b)an order that administration, with a will of the deceased dated 10 November 1993 annexed, be granted to the plaintiff in solemn form. 2By a notice of motion filed on 21 February 2014 (in these proceedings, numbered 2013/00322211) the defendant applies for an order (pursuant to the Uniform Civil Procedure Rules 2005 NSW, r 14.28) that the statement of claim be struck out as an abuse of process. 3The motion has been argued on the basis that, if the proceedings are found to constitute an abuse of process, it would be open to the Court to make such orders as the nature of the case may require (pursuant to the Civil Procedure Act 2005 NSW, s 90 or UCPR r 36.1), not limited to an order that the statement of claim be struck out. It would be open to the Court, for example, to make an order (pursuant to UCPR r 13.4 or the inherent jurisdiction of the Court) that the proceedings be dismissed. 4By a notice of motion filed on 13 March 2014, the plaintiff applies, essentially, for leave to join his sister (the stepdaughter of the deceased) as a co-plaintiff, and to file an amended form of statement of claim incorporating changes consequential upon her joinder. 5Pursuant to orders made on 15 April 2014, the two notices of motion have been heard together and, so far as may be relevant, with evidence adduced on the hearing of one motion admitted as evidence on the hearing of the other. 6On each side of the record, the parties have filed affidavits, taken no objection to the other side's affidavits, declined to cross examine any deponent, and limited their respective cases to submissions, both oral and written. 7No party to the proceedings has any objection to the Court taking into account, on the determination of the motions, documents of record relating to family provision proceedings (numbered 2013/00179204) instituted by the deceased's stepson. Those proceedings have been adjourned, in the Court's Family Provision List, pending the determination of the current proceedings. 8On the hearing of the motions, the prospective second plaintiff (the deceased's stepdaughter) formally advised the Court that she has no intention, herself, of making a claim for family provision relief in relation to the estate of the deceased.

BACKGROUND FACTS 9Nicholas Kouvakas ("the deceased") died, in New South Wales, on 10 August 2011, aged 78 years, leaving property in the State. 10His wife, Helen Kouvakas, predeceased him. They were married in 1959. Each of them had been married previously. Helen died in 2002. 11The deceased was survived by: (a)a daughter, Diana Konakas, born to the deceased and Helen in 1961; (b)a stepson, Nicholas Lucas, born to Helen in 1944; (c)a stepdaughter, Yvonne Trakimas, a sister to Nicholas, born to Helen in 1947; and (d)a granddaughter (the adult daughter of the stepson, Nicholas), Danielle Spanis. 12The names of the respective players in this family drama appear to have been spelled differently in different contexts or inconsistently. There is, however, no controversy about their identification. 13The deceased's daughter and stepson are, and at all material times were, resident in New South Wales. The stepdaughter is, and at all material times was, resident in the United States of America. 14The deceased's estate at the time of his death (estimated to have a value of about $400,000, gross) comprised: (a)a one half share, as a tenant in common, in a residential property at Arncliffe (folio identifier 5/2/4059), valued at about $350,000; (b)a motor vehicle; (c)a bank term deposit; and (d)a small credit with a health fund. 15The deceased's co-owners in the residential property at Arncliffe were his daughter and her former husband, who held their half share of the property as joint tenants. 16So far as is disclosed in the evidence, the deceased made, or purported to make, only two wills: one dated 10 November 1993, the other dated 6 August 2011. 17The daughter apprehends that the deceased also made a will in or about 1999. She grounds that apprehension, she says, inter alia, on statements she attributes to her half-siblings about the existence of a "third will" and what appears to have been an initial reluctance on the part of the stepson to produce the 2011 will. The step children deny knowledge of any third will. 18For the purpose of this judgment, I assume that there is no third will. On the evidence, that is the most prudent assumption. Beyond that, it is not necessary to go. There is no need of a finding of fact as to whether or not there ever was a third will. 19The validity of the 1993 will is not in issue otherwise than by reason that, if the 2011 will was valid, it will have been revoked by that will. 20The 1993 will provided for the following: (a)appointment of the deceased's then wife, Helen, and his daughter as his "executors"; (b)a gift of the whole of the deceased's estate to his wife; and (c)if Helen predeceased him (as happened), a gift of the whole of the deceased's estate to his step children in equal shares. 21The will made no provision for the deceased's daughter. 22 The 2011 will provided for the following: (a)appointment of the deceased's granddaughter (Danielle) and her husband (George) as executors; and (b)in the events as have happened, a gift of the whole of the deceased's estate to his daughter. 23This will made no provision for the deceased's step children. 24The 2011 will was witnessed by the deceased's stepson and the granddaughter at a time when, shortly before his death, the deceased was in hospital. 25The stepson took advice from a solicitor (via telephone and facsimile transmission) in the preparation of the 2011 will at the request of the deceased - or, perhaps, as he contends, at the request of the deceased's daughter conveyed to him, indirectly, via the deceased's granddaughter. The solicitor provided drafting advice of a relatively formal character without any personal engagement with the deceased. 26The deceased's daughter played no direct role in the preparation of the 2011 will. 27The deceased may have apprehended that a new will was required because of the possibility that the daughter's ex husband was provided for in his then current will. 28Upon the assumption that there was no "third will", that appears to have been a misapprehension, influenced perhaps by the fact that the deceased's son-in-law remained on the title of the Arncliffe property. 29It is not necessary to delve into the history of the family's property dealings beyond noting the possibility that, as the deceased's stepson contends, the absence of any provision for the daughter in the 1993 will may be explained by contributions made to her wellbeing by her parents during their respective lives. The deceased and his wife (the mother of the current combatants) lived with the deceased's daughter (and, for a time, her then husband) in separate accommodation on the Arncliffe property. 30A grant of letters of administration, with the 2011 will annexed, was made in favour of the daughter by the Registrar on 14 May 2013 with the express acquiescence of the deceased's stepson, pursuant to orders made by the then Probate List Judge, in December 2012, after each of the stepson and the granddaughter had sworn affidavits in which they deposed to personal doubts they had about the validity of the will. 31The stepson and the granddaughter deposed to facts which suggest that, at the time of execution of the instrument dated 6 August 2011, the deceased lacked testamentary capacity, and did not know or approve of the contents of the will he purportedly signed. 32Following the grant of administration to the daughter, and the stepson's subsequent commencement of family provision proceedings, the daughter and the stepson engaged in a process of mediation (on 25 October 2013) without success. 33It was during, or immediately following, that unsuccessful mediation that the stepson filed his statement of claim seeking to have the letters of administration granted to the daughter revoked. 34The unchallenged evidence of the daughter is that there has been a partial distribution of the deceased's estate (that is, property other than the land) in reliance on the grant of administration now under challenge.

THREE SETS OF PROCEEDINGS 35An understanding of the issues presently under consideration on the hearing of the parties' respective motions requires an elaboration of the procedural history of the three intersecting sets of proceedings affecting the estate of the deceased.

The Administration Proceedings 36The grant of administration of the 2011 will, now under challenge, was made in proceedings numbered 2012/00173956 ("the administration proceedings"). 37Those proceedings were commenced, and concluded, on the nominal basis that they were non-contentious. 38However, what occurred during the course of the proceedings demonstrates that not everything is as it may have seemed. 39The daughter advertised her intention to apply for a grant of administration, by a formal notice duly published in a local newspaper, on 4 January 2012. 40Consistently with the Probate Rules (SCR Pt 78 r 10 as then in force), it was in terms to the following effect: "AFTER 14 days from publication of this notice an application for Administration of the Estate of NICHOLAS KOUVAKAS late of Arncliffe in the State of NSW, retired Factory Manager, will be made by Diana Konakas, the daughter of the deceased and [sic] that an application will be made to dispense with or reduce the penalty of the Administration Bond. Creditors are required to send particulars of their claims upon his Estate to [the solicitors for the daughter, identified by address, document exchange number, telephone number and file reference]." 41The newspaper (The Sydney Morning Herald) could reasonably be expected to come to the attention of the deceased's stepson, locally resident, but not necessarily to the attention of the deceased's stepdaughter otherwise than through family connections. 42The proceedings were commenced by a summons filed, by the daughter, on 31 May 2012, predicated on an assumption that the deceased had died intestate. 43By a notice of motion filed on 22 November 2012, directed to the deceased's stepson, the granddaughter and a former solicitor of the deceased (Vasso Tsolakis) , the daughter (pursuant to the Succession Act 2006 NSW, s 54 and the Probate and Administration Act 1898 NSW, s 150) sought orders designed to interrogate the respondents to the motion about the existence, and availability, of documents bearing the character of testamentary instruments of the deceased. 44On the return date of the motion (3 December 2012) a Registrar referred it to the Probate List Judge for the purpose of giving effect to an agreement for the production of documents, coupled with an adjournment of the proceedings to the Registrar's List the following week. 45On 10 December 2012 a Registrar, once more, referred the proceedings to the Probate List Judge for the purpose of giving effect to another inter partes agreement. 46On that referral the judge, that same day, made "by consent" orders to the following effect (with emphasis added): (1) Order that the respondent solicitor and the granddaughter file and serve affidavits listing all the assets of the deceased, and provide copies of all relevant documents including, but not limited to, cheque butts, credit cards, bank statements and all other relevant items and documents (by a specified time) to the office of the solicitors for the daughter. (2) Order that the respondents [including the deceased's stepson] do all things necessary to enable the deceased's daughter and her solicitor to file an amended summons for letters of administration in the estate of the deceased. (3) Order that the granddaughter and her husband withdraw and renounce their appointment as executors under the will of the deceased dated 26 August 2011. (4) Order that the granddaughter cause the necessary notice to be filed in relation to the renunciation by her and her husband of their appointment as executors under the 2011 will. (5) Order that the respondents pay the daughter's costs in the sum of $11,000 including GST within a specified time. (6) Order that the proceedings be stood over the Registrar's list on 18 February 2013." 47On 18 February 2013, when the proceedings were mentioned in the Registrar's list, counsel appeared for both the daughter and the stepson. 48A formal record made on that occasion reads: "Referred to Registrar - to be considered as a non-contentious application". 49On 21 February 2013 the daughter filed an amended summons claiming a grant of administration with the 2011 will annexed, noting that the executors named in the will were unwilling or unable to act. 50On 6 May 2013 the daughter's solicitor filed, in response to a requisition issued by the Court, a formal Renunciation of Probate form executed by the deceased's granddaughter, and another one executed by her husband, both dated 3 May 2013, accompanied by the original of the 2011 will. 51On 14 May 2013 the formal grant of administration, with the 2011 will annexed, was made in favour of the deceased's daughter. 52The affidavits filed in the proceedings leading up to that time included the following: (a)an affidavit of deceased's stepson sworn on 6 November 2012 (filed on 17 December 2012); (b)an affidavit of the deceased's granddaughter sworn on 6 November 2012 (filed on 17 December 2012); and (c)a second affidavit by the granddaughter sworn on 13 December 2012 (filed on 17 December 2012). 53Those affidavits were, in part, responsive to the orders made on 3 December 2012 and, in part, responsive to an affidavit sworn by the deceased's daughter on 21 November 2012 (and filed on 22 November 2012) deposing, inter alia, to the circumstances in which the deceased executed the 2011 will. 54The affidavits bear the marks of having been prepared with the benefit of legal advice. They record contact details of the solicitor named as a respondent to the daughter's motion. He witnessed one of them. The other was witnessed by a lawyer who appeared before the Probate List Judge on each of 3 and 10 December 2012.

The Family Provision Proceedings 55By a summons filed on 12 June 2013 (in proceedings numbered 2013/179204) the deceased's stepson, as plaintiff, seeks family provision relief under chapter 3 of the Succession Act 2006, including: (a)an order, pursuant to s 58, for leave to commence the proceedings outside the limitation period of one year following the death of the deceased prescribed by the section; and (b)an order, pursuant to s 59 of the Act, that provision be made for the plaintiff's maintenance, education and advancement in life out of the estate of the deceased. 56The deceased's daughter is named in the summons as the defendant. She is apparently contemplated to be the only person with an interest adverse to that of the deceased's stepson. 57The summons is predicated upon the daughter having been the recipient of a grant of administration with the 2011 will annexed. 58That fact is not left to an inference to be drawn from the comparative terms of the 1993 and 2011 wills. 59In an affidavit sworn on 23 August 2013 in support of his summons, the deceased's stepson deposed, specifically, to the deceased having died on 10 August 2011, leaving a will dated 6 August 2011, letters of administration in respect of which had been granted to his half-sister. 60In an affidavit sworn on 11 June 2013, the solicitor for the stepson deposed to the following: "3. The summons herein is being filed to stop time running. 4. The plaintiff Nicholas Lucas is also bringing a separate application for a Grant of Probate in a former will dated 10 November 1993. This application is likely to be contested and so will be brought in solemn form. 5. An application will be made at the first Directions Hearing to have this Succession Act summons stood over generally until such time as the probate application and any contested proceedings arising therefrom have been determined." 61On 23 October 2013: (a)the deceased's daughter affirmed an affidavit in which she deposed to facts relied upon in opposition to a grant of any family provision relief to her half brother; and (b)her solicitor deposed to his service by post on the deceased's stepdaughter of notice of the family provision proceedings. 62In serving notice of the proceedings on the stepdaughter, the deceased's daughter was acting in accordance with her statutory obligations as administratrix of the deceased's estate.

The (Present) Revocation Proceedings 63The commencement of the current proceedings (numbered 2013/00322211) by a statement of claim filed on 25 October 2013 has already been noticed. 64Both sides of the record are agreed that the grant of administration (of the 2011 will) which the deceased's stepson seeks to have revoked was a grant "in common form" rather than a grant "in solemn form". 65The absence of the words "in solemn form" is not necessarily indicative of a grant in common form: Mortimer v David; Estate Dawn Audrey Day, deceased [2005] NSWSC 1166 at [28]. A grant made, on notice to all interested persons, after hearing evidence bearing on the validity of a will, could aptly be described as a grant "in solemn form" notwithstanding the absence of those words in the instrument of grant. The difference between common and solemn form grants is more than merely formulaic. 66However, that we are here dealing with a grant in common form may be agreed for the purpose of these proceedings, if only because: (a) the formal document, issued by the Registrar on 14 May 2013, constituting the grant is not expressed to have been a grant in solemn form; (b) the practice of the Court is to treat every grant, and every order for a grant, of probate or administration, prima facie, as a grant in common form unless the grant, or any order pursuant to which the grant is made, expressly describes it as a grant in solemn form; (c) the orders made by the Probate List Judge on 10 December 2012 stopped short of an order that any form of a grant be made; (d) those orders were, in any event, expressed to have been made "by consent", without any formal indication that the Judge had conducted an independent investigation of any element necessary to be established by evidence if a grant, especially a grant in solemn form, were to be made; (e) the formal notation made by the Registrar on 18 February 2013, effectively referring the proceedings to chambers for him to process administratively, was for the daughter's application for a grant to be regarded as a "non-contentious application"; and (f) the Probate Rules (before and after substantial amendment on 21 January 2013, found in Part 78 of the Supreme Court Rules 1970 NSW), and the practice of the Court, recognised as "non-contentious proceedings" for a grant of probate or administration those proceedings in which there is no defendant and no person has been formally cited to see the proceedings or served with a prescribed form of notice of the proceedings, carrying the consequence that the proceedings may be heard in the absence of the public and without any appearance before the Court of any person. 67When the Registrar turned his attention to whether a grant should be made in this case he would have been obliged to notice the affidavits of the deceased's stepson and granddaughter filed on 17 December 2012. Those affidavits depose to facts which, if accepted, raise a reasonable doubt about the validity of the 2011 will. Unanswered, they would have been sufficient (but for the stepson's acquiescence in a grant) to sustain a caveat against any form of grant: Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 2 NSWLR 232 at 236D-238F; GL Certoma, Law of Succession in New South Wales (Law Book Co, Sydney, 4th ed, 2010), paragraph [14.270], pp 274-275. Absent a caveat, there was no formal impediment to a grant of administration being made to the daughter as sought: Richardson v Rearden [2006] NSWSC 1252 at [5] and [21]; Boland v Nahkle; Re Estate of Talbot (Powell J, unrep, 6 April 1992) BC 9203240 at 4. 68Although closer attention needs, in the current proceedings, to be given to the distinction between a grant in common form and a grant in solemn form, there is sometimes a need of a working definition of the two forms of grant. One is that a grant in common form is a non-contentious grant, and a grant in solemn form is a contentious grant: Tsagouris v Bellairs [2010] SASC 147; 5 ASTLR 403 at [35]-[36]. Another is that, unlike a grant in common form, a grant in solemn form is a grant per testes (literally, "through witnesses" or, more generally, "through evidence") in the sense that, for such a grant to be made, the Court must be satisfied, on evidence adduced by party to proceedings, of the minimum requirements for validity of a will (including, at least, proof of due execution): Wheatley v Edgar [2003] WASC 118; 4 ASTLR1 at [24] and [26]; Romascu v Manolache [2011] NSWSC 1362 at [180]-[181]. 69Each of these working definitions is, in practice, both useful and expedient. However, neither of them is entirely satisfactory. Use of the word "contentious" to distinguish grants in common and solemn form is: (a) to resort to a compendious label which tends to obscure topics hidden at a deeper level of analysis, including questions relating to the existence of a dispute, the identification of parties to it, the method of resolution of any dispute, the necessity for and nature of evidence bearing upon the dispute, and the criteria to be applied in deciding whether or not to make a grant in solemn form; and (b) to suggest, incorrectly, that a grant in solemn form cannot be made in the absence of controversy. 70Description of the distinction between grants in common and solemn form by reference only, or primarily, to questions of evidence unduly discounts the role played by the Court in its making discretionary decisions about the nature, scope and sufficiency of evidence, particularly in cases in which a critical assessment of the whole of the available evidence (not merely evidence selected by a partisan interest) might reasonably suggest grounds for further inquiry. 71The prerequisites for, and the consequences of, the different forms of a grant are closely related to the question of "parties" to proceedings for a grant, a question which, in its turn, focuses attention on the nature of a grant and its susceptibility to an order for revocation. 72The proceedings that culminated in the grant of administration made on 14 May 2013 do not sit neatly within the paradigm that distinguishes between "contentious" and "non-contentious" proceedings. 73The respective positions of the deceased's step children require separate consideration. 74Although the stepson was never, by court order, formally joined as a defendant to the administration proceedings (and, insofar as he was formally named as a party in those proceedings, he was merely a respondent to a notice of motion filed by the deceased's daughter seeking, inter alia, the production of the will in respect of which a grant of administration was subsequently made), he did actively participate in the administration proceedings, he did evidently appear before the Court under the designation of "the defendant", and he did expressly consent to orders that culminated in the daughter's application for a grant of administration being dealt with by the Registrar, in chambers, administratively. 75He was, in substance, if not in form, a defendant between (at least) the time he appeared in the proceedings in response to the daughter's motion and the time when he consented to the Registrar dealing with her application for administration as a non-contentious application. 76The position of the deceased's stepdaughter is ostensibly different. She did not, at any time before the grant of administration to the deceased's daughter on 14 May 2013, formally appear, in any guise, in the administration proceedings. So far as the evidence goes, she appears not to have received formal, written notice of any proceedings between her siblings (the deceased's daughter and stepson) until a date between 24 September 2013 and 7 October 2013 or thereabouts. The former date is taken from a letter addressed to her by her brother's solicitor (Mr AE Dunne). The latter date is taken from her reply. 77The solicitor's letter was in the following terms: "Dear Ms Trakimas, Re: The estate of the late Nicholas Kouvakas As you are no doubt aware we act for your brother Nicholas Lucas who is bringing a claim under the Succession Act of NSW claiming a share of the estate of Nicholas Kouvakas on the grounds that he has not been properly provided for. Nicholas is entitled to bring a claim as he is an eligible person having lived with Nicholas Kouvakas for some time and being financially dependent on him at that time. We presume that the same situation applies to yourself. Wills were made by Helen and Nicholas Kouvakas on 10 November 1993 which left the residue of their estate to you and your brother in equal shares. On 6 August 2011 a last will was made by Nicholas Kouvakas which left his whole estate to Diana Konakas. There were peculiar circumstances surrounding the making of this will and your brother has instructed us to contest it on his behalf. There is no need for you to become involved in the challenge to the will unless you particularly want to as if Nicholas is successful you will automatically get one half of the estate. If Nicholas were to fail in challenging the will then he can continue with his Succession Act claim and most likely get a share of the estate albeit a smaller share. To succeed in a Succession Act claim you have to show that you have need and if you are financially independent and don't have any pressing financial worries then you may not succeed. On the other hand if you do not become involved in this matter the Court can ignore your rights completely. If you want to join Nicholas [in] commencing your own Succession Act claim you will have to sign a cost agreement and pay the filing fee of $1,000.00 Australian. Any further costs will be on a pay as you go basis. We look forward to hearing from you." 78The stepdaughter replied to this letter in the following terms: "Dear Mr Dunne Thank you for your letter dated Sept. 24. Finally someone has explained the situation to me in a way that I understand. For the longest time I haven't really known what was going on. I'm not going to get involved in the Succession Act claim, based on what you have told me, however I will support Nick in any way that I can. Also I'd like to know if we have an action against his former solicitor. It has cost us each about $6,000 and I'm not sure where the money went. According to my brother, we had to outlay all that money because his previous solicitor was completely unprepared and documents were not provided to the other side in a timely manner. Would appreciate your thoughts on this. ..." 79Although she may not have had formal written notice of disputation between her siblings, a fair inference from the evidence is that she was aware of disputation between them about the deceased's estate no later than the time of his funeral, shortly after his death on 10 August 2011. 80On her own evidence, she rang the deceased on 5 August 2011 to say goodbye; she returned to Australia shortly thereafter to attend his funeral; she attempted to discuss the deceased's will with his daughter at the funeral (and by telephone, shortly after her return to the US), but she was unable, she says, to have a dialogue with the daughter because the daughter became angry. She spoke to her brother at about this time, suggesting to him that he and she might discuss questions about the deceased's estate with a lawyer known to her, to which, she says, her brother responded: "I don't want to do this. There is no need for you to be involved. I can handle it on my own." 81That conversation reflects what I find to have been the relationship between the step children and each set of proceedings relating to the deceased's estate: (a)The stepdaughter has never, at any material time, intended, on her own account, to apply for probate or family provision relief in relation to the estate of the deceased. (b)She has, nevertheless, at all material times actively supported her brother in his endeavours to give effect to the provisions of the deceased's 1993 will, which provided for the estate to be divided between the two of them. (c)At an indeterminate time before she wrote her letter dated 7 October 2013 she and her brother each paid about $6,000 to his previous solicitor for services rendered in connection with the deceased's daughter's motion for the production of the 2011 will in the administration proceedings. (d)Although she may not have understood, with clarity, what was happening during the course of the administration proceedings, she was, contemporaneously, aware of them. (e)She was both conscious that she and her brother shared a common interest (both legal and social) in those proceedings and prepared to allow him to have carriage of their dispute with their half-sister. (f)She retained her brother's current solicitor to act for her, as well as for him, in the current proceedings on 25 February 2014. (g)When she came to Sydney in March 2014 she attended a conference with that solicitor and counsel. (h)Prior to that conference, she did not know that the current proceedings might be dismissed because of events concerning her brother's involvement in the administration proceedings. (i)She wishes to participate in the current proceedings ostensibly to protect and advance her own claim to a half interest in the estate of the deceased under the 1993 will, but, in large measure, to assist her brother. 82Viewing the question as one of substance rather than form, the stepdaughter was less clearly a party to, or a participant in, the administration proceedings than was the stepson. However, she did acquiesce in, and support, his conduct of those proceedings in pursuit of their shared, common, familial interest. 83An inference available to be drawn, and which I do draw, from the evidence, and the course of the three sets of proceedings affecting the deceased's estate, is that her conduct is and was at all material times calculated to assist her brother rather than merely to advance her own independent interest. 84She instructed her brother's solicitor to act for her four days after her half-sister filed her motion for an order that his statement of claim be struck out. By consenting to her joinder in the proceedings as a co-plaintiff with him, she empowered him to contend (upon his motion for her joinder) that the grant of administration made in favour of her half-sister should be revoked because it was only a grant in common form and she was not a party to the administration proceedings in which the grant had been made. 85It is true that she was not formally a party to the administration proceedings; but, I find, she did have an opportunity to join her brother in the conduct of those proceedings and, more particularly, in opposition to their half-sister's application for a grant of administration in respect of the 2011 will. Relying on her brother, she did not take up that opportunity. 86He was legally represented: (a) when the administration proceedings were before the Court, in an adversarial setting, on each of 3 December 2012, 10 December 2012 and 18 February 2013; and (b) when he and his daughter (the deceased's granddaughter) each swore an affidavit on 6 December 2012 deposing to the circumstances in which, they say, the 2011 will was executed. 87Nevertheless, he says that, when the Probate List Judge made the orders of 10 December 2012 that led to the grant of administration made in favour of the deceased's daughter on 14 May 2013, he did not know of the legal distinction between a grant of administration in common form and a grant of administration in solemn form. Nor did he then know that it was open to him to apply to the Court for a grant of administration in solemn form in respect of the 1993 will or that, by not seeking such a grant, his right to do so in later proceedings might be adversely affected. 88None of the parties to these proceedings is well heeled. The deceased's estate is not large. The step children contend that an order requiring them to provide security for the costs of the current proceedings could stultify the proceedings. The stepson has not paid the costs he was ordered to pay his half-sister on 10 December 2012. The stepdaughter has no assets in Australia, though (subject to a mortgage) she owns her own home and has liquid funds in the US. 89The stepchildren did not take up an invitation, made during the course of argument in the revocation proceedings, that they provide, in Australia, security for their stepsister's costs.

PRESENTLY AVAILABLE EVIDENCE ABOUT THE CIRCUMSTANCES IN WHICH THE 2011 WILL WAS EXECUTED 90As previously recorded, each of the deceased's daughter (Diana), stepson (Nicholas) and granddaughter (Danielle) swore an affidavit in the administration proceedings about the circumstances in which the 2011 will was executed by the deceased. 91Each affidavit was sworn before the consent orders of 10 December 2012 were made by the Probate List Judge. 92The daughter's affidavit was sworn on 21 November 2012. With knowledge of that affidavit, each of the stepson and the granddaughter swore an affidavit on 6 December 2012 setting out their respective versions of events. 93The 2011 will was executed during the afternoon of Saturday 6 August 2011, apparently at about 3.00pm. 94In the clinical notes of St George Hospital appears an entry (apparently made at 8.15pm on 6 August 2011) that includes observations of the nursing staff about the circumstances in which the will was executed earlier that day. 95None of this evidentiary material has been tested by cross examination.

The daughter's version of events 96The daughter's version of events appears in the following extract from her affidavit sworn 21 November 2012: "9. The deceased made a will in 1993, which appointed me as executrix and gave his estate to Nicholas [the stepson] and Yvonne [the stepdaughter]. However, this was before he and my mother sold their house at Brighton and built another property and lived with me and my ex husband [Jon] at ...... Arncliffe. 10. I am told and believe that the deceased may have made another will after the 1993 will. 11. Sometime in the late 1990's - I believe during 1999 - I recall I had several conversations with my mother, where she said to me "We are leaving you everything." 12. I also recall many conversations with the deceased over those years, after he and my mother moved into the house at Arncliffe. He would say to me, 'I've left everything to you'. The last time I recall him saying this was on or around late 2010/early 2011, during a conversation I had commenced by talking about my need to prepare a will for myself. 13. I recall that the last conversation I had with my mother about this before she died, when she said to me: 'We are leaving everything to you. I am sure you will be fair.' 14. I am told and believe that the deceased told his friends Ellada and Nick Chiotis that he would leave everything to me; I am also told and believe that he told this to our family friends Mary Christopher and Despina Acquaro. 15. The deceased's and my mother's solicitor for over twenty years was Vasso Tsolakis, of Tsolakis & Co. Solicitors. 16. About a month before the deceased died, he was coughing and he was [sic] his blood pressure was low. He would cough and then pass out. I took him to the Rockdale Medical Centre. They said to me words to the effect, 'You should take your father to the hospital' I took the deceased to St George Hospital on that same date and he was admitted as a patient. 17. I recall that I visited him on the Friday before he died. The hospital had moved him from ward to ward but most of the time he was in the cardiac ward. I recall I was with him that day, sitting by his bed. He said to me, 'I want to do a new will.' 18. I began to cry because I thought he meant he was going to die. The deceased said to me, 'I think Jon's name is on the old will.' Jon is my ex husband. I said to the deceased, 'Okay' 19. The deceased was speaking clearly and we were speaking together throughout the day. He did not appear to me disoriented or forgetful. 20. My niece Danielle Spanis, the daughter of my stepbrother Nicholas Lucas, visited the deceased regularly whilst he was in hospital and helped my father to pay his bills. Danielle has worked in a bank and is good with paying bills and organising money... 22. On the Friday afternoon after the conversation with my father referred to in paragraphs 17 and 18 above, I saw my stepbrother Nicholas at the hospital. I said to him 'Dad wants to do a new will. Can you get Tsolakis to do it?' He replied, 'I'm not friends with him [Vasso Tsolakis] any more. I know someone else who might be able to help us.' 23. That Friday evening I spoke to Danielle. I said to her, 'What are we doing to do about Dad doing his will?' She said to me, 'I'll speak to Dad [meaning her father Nicholas] and see what we can do.' I said to her, 'He told me he's not friends with Vasso any more and he knows someone else.' She said to me,' 'Leave it with me and I'll let you know.' I said to her, 'Can you let me know since I'm working tomorrow and you'll be sitting with him'. She said, 'I'll ring you tomorrow and tell you what's happening.' Danielle would sit with the deceased when I was unable to. 24. I recall that the next day I was at work when Danielle rang and said to me, 'It's all organized, I'm meeting Dad at the hospital at three and we're going to do the will.' I said to her, 'How are you going to do it, is the solicitor going?' She said, 'No, Dad's got all the paperwork and we're going to fax it to the solicitor from the hospital.' I said, 'Who's the solicitor?' She said, 'I don't know'. I recall that later that afternoon Danielle rang me and said, 'Don't worry its all been done.' I said to her, 'Thank God for that.' I then said, 'What did he do?' She said, 'He left everything to you.' I said, 'What about his car?' She said to me, 'That too.' She then said, 'It's all been faxed off to the solicitor'. I said to her, 'That's great'. 25. Then I called some friends and told them. I recall I called my friend Nina Vassalo, Despina Anthony and Owen Poole. 26. I recall another conversation I had at the hospital with Ellada and Nick Chiotis and Mary Christopher, who were visiting the deceased. I recall that one of them said to me, 'Your father's left you everything'. Another one said to me, 'Nick's not going to be very happy'. I said, 'How do you know, did Dad tell you?' They said words to the effect, 'He had told us several months earlier when we saw him at Eastgardens. He had said that he had made a new will and that was what he was doing.'"

The stepson's version of events 97The stepson's version of events appears from the following extract from his affidavit sworn 6 December 2012: "Details of conversations and/or instructions, facts and circumstances of the document purporting to be the testamentary of the Deceased dated 6 August 2011. 19. On or about 8 July 2011, I was informed that the Deceased had been admitted to hospital. 20. From 8 July 2011 to 10 August 2011 I attended the hospital almost every day. 21. On 27 July 2011 I was informed by the hospital staff that the Deceased was diagnosed with cancer and that given his condition, he did not have much longer to live. 22. By 6 August 2011 it was apparent to me that the Deceased's medical condition had deteriorated. I was informed by hospital staff that the deceased was given morphine for the relief of pain. It was apparent to me at the time from my visits with the Deceased in hospital that the Deceased lapsed in and out of consciousness. It was apparent to me also at the time that the [deceased] did not have much longer to live. 23. On or about 6 August 2011 I had a conversation with my daughter Danielle Spanis comprising words to the following effect: She said to me: 'Pop (the Deceased) thinks that John (the Applicant's then ex-husband) is on the Will'; and 'I have spoken to Diana (the Applicant) - she is very upset that [the] ex-husband John is on the Will - can you do something about it? Can you change the will so that her ex-husband does not appear?' I said: 'Leave it with me'. 25. Subsequently, at the hospital in the presence of the Deceased and my daughter Danielle Spanis I had the following conversation: Danielle said to the deceased: 'What do you want us to do with your will? Who should I put in your will as beneficiary?' The deceased did not reply. He appeared to me to be unconscious. I said to Danielle: 'Who should we put down as the beneficiary?; Danielle said: 'I don't know. Perhaps we should put in the will that Diana is the sole beneficiary'. 25. Subsequently I telephoned a solicitor at Thomas Booler and Co Law, I cannot recall his name, and said to him words to the following effect: 'I need the wording for a will. My step-father is on his death bed.' He said: 'Who do you want on the will?' I said: 'I need it for my step-father Nicholas Kouvakas, and the beneficiary to be my half sister Dian Konakas'. 26. [The text of the document that became the 2011 will] was transmitted to me by facsimile to the facsimile machine at the hospital. 27. Subsequent to receiving a copy of the document from a staff member at the hospital, I attempted to obtain the signature of the Deceased on the document. As the Deceased was lapsing in and out of consciousness at the time I attempted to wake him. My daughter Danielle held his arm to facilitate the deceased to place his signature on the document. In this manner the Deceased tried to sign each page of the document. I recall that he did not sign each of the pages. At the time there was a nurse present who placed her signature at the document at the bottom of each page except for the last page. I do not recall the name of the nurse. 28. At the time I signed each page together with my daughter who also signed each page. 29. At the time I signed the document, I do not believe that the Deceased comprehended the content of the document nor its effect. The Deceased was unconscious or partially unconscious at the time he signed the document. 29. I did this because I felt a moral obligation and familial duty to my half-sister Diana Konakas. 30. Soon after I obtained the signature of the deceased on the document in this manner, I formed the view that this was not a valid Will. I formed this view based upon the medical condition of the Deceased at the time of signing the document dated 6 August 2011. 31. To the best of my knowledge and belief there is no other document that purports or is otherwise a Will of the Deceased other than the document dated 10 November 1993...."

The granddaughter's version of events 98The granddaughter's version of events appears in the following extract from her affidavit sworn 6 December 2012: "Details of conversations and/or instructions, facts and circumstances of the document purporting to be the testamentary of the Deceased dated 6 August 2012. 23. On Friday 8 July 2011, the Applicant [the daughter of the deceased] informed me that the Deceased has been admitted to hospital. 24. From 8 July 2011 to 10 August 2011 I attended the hospital every day, on occasion, I would attend the hospital twice or three times a day. On several of these occasions, the Deceased said to me words to the following effect: 'We should have fixed up the papers - Jon is still on the papers' and 'I am worried about the papers. I think John is on the will'. 25. The Deceased only ever used the word 'Will' once and on each other occasion referred to 'the papers'. 26. During these conversations with respect to 'the papers' I noticed that the Deceased was very coherent. 27. On 27 July 2011 the [sic] I was informed, I believe by the hospital staff, that the Deceased had cancer. ... 32. On 6 August 2011 I attended the hospital in the morning at around 8.30am. I intended to see the Doctor and go to pick up my son from soccer, and then return later for a visit with the Deceased. 33. When I arrived subsequently at the hospital the Deceased looked very ill. It was apparent to me that the deceased's condition had deteriorated significantly since the previous evening. I called my husband to attend to my son as I felt uneasy about leaving the Deceased on his own as it was apparent to me that he would not live much longer. 34. On 6 August 2011 at around 10.00am I enquired as to the condition of the Deceased with a member of the nursing unit at the hospital in regard to the medication that the Deceased was prescribed. During this conversation the nursing unit manager said to me words to the following effect: 'Some of the staff do not want to deal with your aunty [the deceased's daughter] as she is very aggressive and confrontational'. 35. Subsequently, I had a conversation with the oncologist who was part of the team treating the Deceased. I do not recall the name of the oncologist but she said to me words to the following effect: 'The treatment that we had hoped to use on your grandfather can not be used. It is most likely that the Deceased will only have at best a week to live'. 36. At around noon on 6 August 2011 I decided to call the Applicant in respect of my conversation with the Deceased about his Will, as it appeared to me that the Deceased's condition was deteriorating rapidly. At about 12.30pm I telephoned the Applicant and said words to the following effect: 'Diana, pop thinks that John is on his Will'. The Applicant said: 'What - I don't want that fucking bastard to get anything. Ring your dad and see if he knows someone who can do a new Will'. I telephoned my father, Nick Lucas and repeated the conversation that I had both with the Deceased and Diana in respect of the Deceased's Will. 37. Subsequently at about 1.30pm on 6 August 2011 my father, Nick Lucas telephoned me and said to me words to the following effect: 'I have some papers; we should go to the hospital together'. 38. Subsequently, I telephoned the Applicant and repeated the content of the conversation with my father. 39. Subsequently, I attended the hospital in the afternoon and noticed that the curtains were drawn around the Deceased and there appeared to be a number of people around the bed. I was informed by one of the nursing staff that a BiPap machine was being used to assist the Deceased's breathing. He did not like it so they were taking it off. His breathing was laboured but he was awake and I said words to the effect of 'We are going to fix the papers so that Jon's name isn't on them anymore' and the deceased said 'you can?' to which I replied 'yes'. I then said to the deceased 'someone has to take care of the Paperwork Pop, do you want me to do it?' The deceased said 'yes, you always pay my bills and things'. 40. Subsequently I left the room for a short period of time while the deceased was attended to by staff. My father and I returned to the room and asked a nurse to help elevate the deceased so we could go through the papers with him. By this time the deceased was very breathless. He did not seem to understand what we were saying to him. I remember that I said 'Pop, if something happens to you, what do you want to happen to your car and your things?' I repeated this a couple of times but he didn't answer. I then remember that I looked across to my Father who was holding some pages and I said 'Just put Diana's name on it, we will work it out later'. I said to the deceased 'Pop, we need you to sign this to get John off the papers'. He did not make any coherent response. He appeared to me to be lapsing in and out of sleep. I was informed by the nurses that the Deceased was heavily medicated. [It] was in this manner and condition that I together with my father facilitated the deceased in signing the papers. I supported the [deceased's] arm and prodded him to keep him awake to sign the document. I was informed that prior to his death the Deceased was given morphine. ... At the time that the Deceased signed the [2011 will] there was a nurse present whose signature appears at the bottom of the [page]. I do not recall the name of the nurse that signed the document. 41. Subsequently, about an hour later, I spoke to the Applicant. She was at work and I remember that I was very distressed and I said words to the following effect 'I felt like I was torturing him, he just wanted to sleep and he didn't know what I was asking ... we just put your name on it'. I had a similar conversation with Linda Mallios as she called me just after I had spoken to Diana. I described to her how bad the deceased's condition had been and how difficult it had been."

St George Hospital Clinical Notes 99The clinical notes of St George Hospital, relating to observations of the deceased by nursing staff include, in an entry dated and timed (using a 24 hour clock reference) "6/8/11. 20:15", the following observations: "... Psychosocial: pt communicating little 2° to SOB, but appropriate responses received. Denies pain when asked. Visited by daughters & other family. Signed papers for will & [?] daughter - pt had been agitated as will needed changing - now happy this has been organised. Same [or some?] family members remain agitated re poor prognosis - support given."

PRINCIPLES GOVERNING REVOCATION OF A GRANT OF PROBATE OR ADMINISTRATION

Introduction 100An extended elaboration of the principles governing revocation of a grant of probate or administration is required in these proceedings because: (a)the revocability of a grant may depend on whether the grant was made in common or solemn form. (b)the grant sought in these proceedings to be revoked is nominally a grant in common form, but the process leading to it being made bore some similarity to the process leading to a grant in solemn form. (c)there is a need to clarify both: (i) the distinction between a grant in common form and a grant in solemn form; and (ii) the factors relevant to the making, and revocation, of such grants. (d)an historical exposition of the essential features of common and solemn form grants may assist distillation of principles underlying both the distinction between them, and the jurisdiction of the Court in revocation of a grant, because this area of the law is largely governed by the practice of courts (variable over time and space) rather than abstract, immutable rules. (e)the practice of the Court, in dealing with applications for the making and revocation of grants, needs to be located in the case management principles (set out in Part 6 Division 1, ss 56-60, of the Civil Procedure Act 2005 NSW) that now inform the Court's conduct of business generally. 101The principles to be applied on an application for revocation of a grant of probate or administration (including a grant of administration with a will annexed) are informed by the nature and purpose of, respectively, the grant sought to be revoked and the order for revocation, topics in turn informed by the nature and purpose of the Court's probate jurisdiction generally.

The Source(s) and Nature of Probate Jurisdiction 102As confirmed by the Supreme Court Act 1970 NSW, s 22, the jurisdiction of the Supreme Court of NSW, as presently constituted, is grounded upon letters patent dated 13 October 1823 (generally known as the "Third Charter of Justice" in deference to earlier Charters of Justice promulgated by letters patent respectively dated 2 April 1787 and 4 February 1814) issued pursuant to the Imperial Statute (4 Geo IV c 96) known colloquially as the "New South Wales Act" of 1823, the operation of which was preserved by the Imperial Statute (9 Geo IV c 83) known as the Australian Courts Act 1828. 103The New South Wales Act authorised the establishment of the Supreme Court by letters patent issued by the Crown. Amongst an array of provisions that reflect the disjointed, scattered nature of judicial administration in England in the formative years of NSW, s 2 provided for the Court to be a court of record, with common law jurisdiction defined by reference to the jurisdiction of England's courts of common law: the Courts of King's Bench, Common Pleas and Exchequer. Section 9 provided for it to be a court of equity by reference to the equitable jurisdiction of the Lord Chancellor. Critically, s 10 provided for it to be a court of ecclesiastical jurisdiction. 104The reference to "ecclesiastical jurisdiction" is critical because what we now perceive to be the "probate" jurisdiction of the Supreme Court of NSW, and a subsidiary head of the Court's "equity" jurisdiction, was, at the time of establishment of the Court, perceived (as illustrated by Allen v McPherson (1847) 1 HLC 191; 9 ER 727) to be a separate head of jurisdiction in its own right: ecclesiastical jurisdiction, exercised by courts of England's established Church, the Church of England. 105The Court's probate jurisdiction is not coincident with its equity jurisdiction in all respects. It is important to recognise both that fact and reasons for the fact. 106No contemporary significance for Australian law attaches to the English, ecclesiastical connection. Australian probate law is, as English probate law evolved, secular, not religious. The importance of the ecclesiastical connection is that, by developing in courts separate from the courts of common law and equity, English probate law was able to develop a distinctive approach to problem solving adapted to the nature of problems required to be solved. 107It is not necessary, or desirable, to recognise in probate law or practice the dualism (and debate about fusion fallacy under a "Judicature Act" system) that has bedevilled the relationship between common law rules and equitable principles. Nevertheless, it is important, to an understanding of the functional significance of idiosyncratic probate law and practice, not to subsume the probate jurisdiction in those of common law or equity. 108It is not "necessary" or "desirable" for several reasons. First, unlike the common law jurisdiction, the probate jurisdiction is not primarily concerned with claims of right between adversarial parties. It is concerned with the due administration of property (in the form of an "estate") having regard to the interests of the dead, the living and the public. 109Secondly, independently of any operation of equity's jurisdiction, a strong evaluative, discretionary element is generally intrinsic to an exercise of probate jurisdiction. It is, for example, a moot point whether equity's "discretionary defences" of laches, acquiescence and delay have any scope for operation, as such, in probate litigation. Independently of equity, an exercise of probate jurisdiction may require the Court to take into account facts able, by close analogy, to be characterised as laches, acquiescence or delay. 110Thirdly, with its focus on the management of property, and competing (sometimes unrepresented) interests in property, it is important that the probate jurisdiction of the Court be administered with flexibility, unconstrained by unnecessary jurisdictional divides, able to adapt practice and procedure to deal with practical problems attending property management. It shares this perspective, vis â vis parties to proceedings, with Equity: Union Bank of Australia v Harrison Jones and Devlin Ltd (1910) 11 CLR 492 at 504-506. 111Fourthly, probate law and practice has, historically, manifested a capacity for adaptation, and absorption, of common law and equity procedures. In former times, when the ordinary mode of trial at common law was trial by jury, questions of fact in probate litigation (such as a question about a testator's testamentary capacity) were susceptible to jury trial. Equity, for its part, contributed to the probate jurisdiction its procedures for calling fiduciaries to account, one consequence of which is that the law governing the remuneration of executors and trustees is, in substance, uniform: Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247 at [33]-[34] and [41]-[43]. 112Nevertheless, differences between "probate" and "equity" remain. 113One notorious difference relates to the concept of undue influence. In the probate jurisdiction, an allegation of undue influence, made in support of a challenge to the validity of a will, requires proof of actual coercive conduct vitiating the free will of the testator, without the benefit of any form of presumption of undue influence arising from relationships such as may be available in the equity jurisdiction: Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121C-122G; Young, Croft & Smith, On Equity (Law Book Co, Sydney, 2009), paragraph [5.520]. 114Another, already noticed, relates to the operation, if any, of the equitable defences of laches and acquiescence, and principles of estoppel, in answer to claims made in probate. Resort may possibly be had to them, but, if so, they are not as readily available in the probate jurisdiction as they otherwise are because: (a) in the probate jurisdiction, proceedings are not purely adversarial (Re Estate of Fuld, Deceased [1965] P405 at 409F-411B; Re Estate Pierbon, Deceased [2014] NSWSC 387 at [44]-[50] and [62]-[71]); (b) there is a public interest in seeing that the last will of a free and capable testator is recognised and enforced (Re Dowling; sub-nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 at [23]); and (c) probate procedures are not readily characterised as so defective as to warrant equity's "intervention": Neilson v The Public Trustee; the Estate of Ellen Letitia Neilson (Powell J, unrep, 8 May 1992) BC9201888 at 15 and 18 (reproduced in Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (Powell J, unrep, 20 August 1993) BC9303644 at 20 and 23); Bowler v Bowler (Young J, unrep, 18 December 1989) BC8901301 at 36-39. 115These differences are functional, not merely historical. They reflect the unique public interest character of probate proceedings and the subject matter of those proceedings, including the Court's concern to give effect to the testamentary intentions of deceased persons and to protect the interests of persons not present before the Court. 116Clauses 14-17 of the Third Charter of Justice confirmed the status of the Supreme Court as a court of ecclesiastical jurisdiction, with powers (under the seal of the Court) to make grants of probate or administration. 117Clause 14 provided as follows (with emphasis added): "14. And whereas, in the [New South Wales Act] it is enacted, 'That the [Supreme Courts of NSW and Van Diemen's Land, now Tasmania, respectively] shall have cognizance of all pleas, civil, criminal or mixed'; and the jurisdiction of the said courts, in all such cases, is thereby settled and ascertained: And it is thereby enacted, 'That the said courts shall be Courts of Ecclesiastical Jurisdiction, and shall have full power and authority to administer and execute, within New South Wales and Van Diemen's Land, and the dependencies thereof, such ecclesiastical jurisdiction and authority as shall be committed to the said Supreme Courts, by Our Charter or Letters Patent'; Now We do hereby grant, ordain, establish, and appoint, that the Supreme Court shall be a Court of Ecclesiastical Jurisdiction, with full power to grant probates, under the seal of the court, of the last wills and testaments of all or any of the inhabitants of that part of the colony, and its dependencies, situate in the island of New Holland, and of all other persons who shall die and leave personal effects within that part of the colony; and to commit letters of administration, under the seal of the court, of the goods, chattels, credits, and all other effects whatsoever, of the persons aforesaid who shall die intestate, or who shall not have named an executor resident within the colony and its dependencies; or where the executor, being duly cited shall not appear and sue forth such probate, annexing the will to the said letters of administration, when such persons shall have left a will without naming any executor, or any person for executor who shall then be alive and resident within the colony and its dependencies, and who, being duly cited thereunto, will not appear and sue forth a probate thereof; and to sequester the goods and chattels, credits, and other effects whatsoever of such persons so dying, in cases allowed by law, as the same is and may be now used in the Diocese of London, and to demand, require, take, hear, examine and allow, and if occasion require, to disallow and reject the accounts of them, in such manner and form as is now used, or may be used, in the said Diocese, and to do all other things whatsoever needful and necessary in that behalf. Provided always, and We do hereby authorize and require the court, to reserve in such letters of administration full power and authority to revoke the same, and to grant probate of the said will to such executor whenever he shall duly appear and sue forth the same. And We do hereby further authorize and require the Supreme Court to grant and commit such letters of administration to any one or more of the lawful next of kin of such person so dying as aforesaid, and being then resident within the jurisdiction of the court, and being of the age of twenty-one years; and in case no such person shall then be residing within the jurisdiction or being duly cited shall not appear and pray the same, to [grant the same to] the Registrar of the court, or to such persons, whether creditors or not of the deceased persons, as the court shall see fit. Provided always, that probates of wills, and letters of administration, to be granted by the court, shall be limited to such money, goods, chattels, and effects, as the deceased person shall be entitled to within the colony." 118This grant of jurisdiction by reference to that of an English Court of Ecclesiastical Jurisdiction was limited, in terms and effect, to a conferral of probate jurisdiction. New South Wales did not inherit English Ecclesiastical (church) law generally and the Supreme Court, upon its establishment, was denied ecclesiastical, matrimonial causes jurisdiction: JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), p 293 n 2; JM Bennett, The "Ecclesiastical" Jurisdiction exercised in the Supreme Court of New South Wales, 1824-1890 (Sydney Law School, Research Paper, 1967); Ex Parte King (1861) Legge 1307. 119The New South Wales Act was repealed by the Australian Courts Act with the proviso (found in s 2) that the Third Charter of Justice was to continue in operation as if issued under the latter Act. 120Section 10 of the New South Wales Act was, in substance, re-enacted as s 12 of the Australian Courts Act, thereby confirming the Supreme Court of NSW as a court of ecclesiastical jurisdiction, with full power and authority to administer and execute within New South Wales such ecclesiastical jurisdiction and authority as had been committed to the Court by the Third Charter of Justice. 121Section 24 of the Australian Courts Act is generally seen as the primary, statutory authority for the reception of English law, "so far as the same can be applied", in the colony of New South Wales. It fixed 25 July 1828 as the date for reception of English law in New South Wales, giving a measure of clarity to common law rules, for the application of English law to an English colony, commonly associated with Sir William Blackstone's Commentaries on the Laws of England (1st ed, 1765-1769) vol 1, pp 106-107 or, beyond Blackstone (as Professor Alex C Castles explains in An Australian Legal History (Law Book Co, Sydney, 1982), at pp 4-14), a 1722 Privy Council memorandum relating to a case simply entitled Anonymous. 122As explained in a classic NSW practice book (R Hastings and G Weir, Probate Law and Practice (Law Book Co, 2nd ed, 1948) at p 6), the combined effect of the Third Charter of Justice and the Australian Courts Act was to confer upon the Supreme Court of NSW a jurisdiction in probate, and to apply the law, manner and custom of England (and, in particular, the Diocese of London) as far as it should be applicable in NSW as at 25 July 1828. 123It was not until the enactment of the Probate Act 1890 NSW that the Court's probate jurisdiction ceased to be styled "Ecclesiastical": Hastings and Weir (2nd ed, 1948), pp 21-23; JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), chapter 8, esp pp 133 and 139-141. 124The 1890 Act was subsumed in the consolidation of legislation effected by the Wills Probate and Administration Act 1898 NSW, since the enactment of the Succession Act 2006 NSW known as the Probate and Administration Act 1898 NSW. 125In NSW at the present day, the legislative foundations for the Court's probate jurisdiction (in the widest sense of that term) are found in the Probate and Administration Act and the Succession Act. 126Primary provisions in the Probate and Administration Act include s 33 (which confirms that probate jurisdiction is vested in the Court), s 40 (which confirms that the Court's jurisdiction extends to grants of probate or administration of the estate of any deceased person leaving property, whether real or personal, in NSW), s 40D (which provides for the effect of an order revoking a grant of probate or administration), s 42 (which provides for all applications for probate or letters of administration to be made in such manner as may be prescribed by Rules of Court), s 44 (which provides for estate property to vest in an executor or administrator upon a grant being made), s 61 (which provides that, in the interim between death and a grant being made, estate property is deemed to be vested in the NSW Trustee), ss 63 and 74 (which empower the Court to appoint administrators), s 75 (which enables grants to be made where an executor named in a will neglects or refuse to prove a will) and ss 90-92 (which provide protection for parties dealing with estate assets on the faith of a grant). 127The Succession Act deals with the law relating to wills, including informal wills (s 8), court authorised wills for persons lacking testamentary capacity (ss 18-26) and rectification of wills by court order (s 27); the grant of family provision relief by orders generally made after death (chapter 3, ss 55-100); and provision for the distribution of intestate estates (chapter 4, ss 101-140). 128The "Probate Rules" are found in the Supreme Court Rules 1970 NSW, Part 78. Those rules must be read in the broader context of the Supreme Court Act 1970 NSW, the Supreme Court Rules 1970 NSW generally, the Civil Procedure Act 2005 NSW and the Uniform Civil Procedure Rules 2005 NSW, as well as the Probate and Administration Act and the Succession Act. Nevertheless, SCR Part 78 provides the basic template for proceedings (both "contentious" and "non-contentious") in which the Court's probate jurisdiction is invoked. 129That jurisdiction has long been exercised on the basis that, unless there has been a statutory taking away of jurisdiction, the Court has power to make grants of probate or administration as the circumstances of a particular case may require, provided only that there is property within the jurisdiction: Firns v Firns; Estate of Firns [2000] NSWSC 396 at [12] per Young J. Neither the Probate and Administration Act nor the Succession Act is construed as having taken away the "inherent" jurisdiction of the Court derived, ultimately, from the Third Charter of Justice and the Australian Courts Act, s 24. 130If, perchance, this "inherent" probate jurisdiction, subsequently modified by local legislation, were ever found to be deficient, it might now be justified by reference to the Supreme Court Act 1970 NSW, s 23. That section provides that "[the] Court shall have all jurisdiction which may be necessary for the administration of justice in NSW".

The Cultural Heritage of NSW Probate Practice 131It remains important, though, to appreciate the strong cultural connection that local NSW law maintains with the law of probate derived from the English ecclesiastical courts. The procedures for which the NSW Probate Rules still provide have identifiable roots in Ecclesiastical Court procedures, as illustrated by CR Chapman, Ecclesiastical Courts, Their Officials and Their Records (Lochin Publishing, Dursley, England, 1992), pp 48-51. 132A practical illustration can be found in the observation that leading cases which inform the principles to be applied in the present proceedings are judgments of the Prerogative Court (described, in Hamilton v Hamilton (1913) 46 WN (NSW) 46, as one of the old Courts of Ecclesiastical Jurisdiction by reference to which the Supreme Court of NSW acquired probate jurisdiction) in Newell and King v Weeks (1814) 2 Phil. Ecc 224 at 230-234; 161 ER 1126 at 1129-1130 (approving Hoffman v Norris and White (1805) 2 Phil. Ecc 230; 161 ER 1129, note (b)); Bell v Armstrong (1822) 1 Add 365; 162 ER 129; and Merryweather v Turner (1844) 3 Curt. 802; 163 ER 907. 133Those judgments have been authoritatively applied (directly or indirectly) by experienced probate judges of this Court in, for example, Neilson v The Public Trustee; Estate of Neilson (Powell J, unrep, 8 May 1992) BC 9201888 at 15; Bramston v Morris; Estate of Murray (Powell J, unrep, 20 August 1993) BC 9303644 at 20; Dickman v Holley [2013] NSWSC 18 at [136] per White J; and Re Dowling; sub-nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 at [24] per Young AJ. 134Through Wytcherley v Andrews (1871) LR 2 P&D 327, Newell v Weeks was applied by the High Court of Australia in Osborne v Smith (1960) 105 CLR 153 at 158-159. 135There, with an express acknowledgement of its derivation from English ecclesiastical jurisdiction (including an express endorsement of Hamilton v Hamilton), Kitto J observed: "... There is a well established principle of probate practice, which grew up in the ecclesiastical courts, that any person having an interest may have himself made a party by intervening [in a probate suit], and that if he, knowing what was passing, does not intervene, but is 'content to stand by and let his battle be fought by somebody else in the same interest', he is bound by the result, and is not to be allowed to re-open the case [notwithstanding that he was not a party to the suit]". 136In Young v Holloway [1895] P 87 at 89 (a case relied upon by Hallen AsJ in Romascu v Manolache [2011] NSWSC 1362 at [179] and by Young AJ in Re Dowling [2013] 1040 at [24]) Newell v Weeks was described as the leading case on the subject. 137The reasoning in Newell v Weeks (at 2 Phil Ecc 233-234; 161 ER 1129-1130) has a flavour of "estoppel" about it, but it is not expressed in those terms: "In the present case the deceased has been dead six or seven years - but here a suit has been instituted, the will has been proved per testes, and solemn proceedings have been had between competent parties in the same interest, and averring the interest of the parties who now wish to institute proceedings afresh, and the judgment of this Court has been affirmed by that of the Court of derniere resorte - Newell and Weeks have not only been privy to all these proceedings; but substantially have been parties themselves to this suit, quite as much if they had actually appeared - Spectators to the whole, and privy to the whole, if they had been dissatisfied, they might have intervened at any moment of the proceedings. This right of intervention, coupled with their privity to the proceedings, is decisive to shew that they can have sustained no prejudice by not having been before cited, and not having before given a formal appearance. In the former cause they had not only a right, but it was their duty to intervene if they meant not to abide by the decision - their interests were directly affected; if the will had been set aside, they would have established their claim. The lis pendens served as a public notice on which they were bound to act. But that which marks, if possible, more strongly the unfairness of the present attempt (though this circumstance is not necessary for the decision of the question) is the agreement made during the appeal, in which it is stated to have been expressly understood, that on the payment of 100 guineas, not only was no opposition to be given to the affirmance of the sentence, but no new caveat was to be entered by any of these parties; and the parties now proceeding do not deny the fact of their privity to this agreement. It is a most unconscientious attempt again to put the executor on proof of the will." 138The expression "privy to all these proceedings" refers, here, to knowledge of the proceedings. 139The Court was addressing a case in which next of kin of the deceased (Newell and King) sought revocation of a grant of probate of a will granted only after hotly contested proceedings in which, in formal terms, other parties in the same interest had served as the executor's (ie, Weeks') contradictors. 140The extracted observations of the Court were preceded by the following: "... the real justice of the case cannot be doubted by any individual. The Court would deeply lament if any rule bound it down so strictly that it must do so great an injustice as to allow the parties again to put the executor on proof of his will. On what do they stand? they rest simply on not appearing, and not having been cited to appear. If there had been distinct authorities, or a series of adjudged cases, affirming the proposition that, in all cases where a next of kin had neither appeared nor been cited, he should possess an indefeasible right to put the executors to proof, the Court must have bowed to those authorities: but no authority has been cited to that effect, no case has been produced, no dictum even of any of my predecessors has been referred to - all that has been relied upon is the practice of citing parties to see proceedings on pain of their not appearing - which proves no more than that you may affect them with a legal notice which may bind them - but the converse of the proposition is by no means established; it does not follow that they may not be bound, or rather may not bind themselves by other means. The process of citing parties is a convenient one for all suitors, because, when that is done, you need not prove actual privity - the law presumes actual privity after the legal process - the lis pendens is sufficient notice that persons should appear and protect their own interests - but if you can prove actual privity, the legal process, in point of solid justice and sound reason, is superfluous; though, ex abundanti cautelâ, it may still be convenient to resort to it, and have it upon record. The practice, therefore, may be explained and accounted for upon other grounds, short of going the length contended for; viz. that unless either there is an actual appearance, or the party is formally cited, the proceedings will not affect him however distinctly it may appear that he was privy to the whole of them - indeed, as I have before stated, no authority, case, or even dictum, to support the rule to the extent set up, has been offered to the consideration of the Court. There are cases, however, the other way, which, though not precisely the same as this, yet shew that the Court looks to substantial justice, and that which right reason requires, and does not require indispensably the strict formality of citing. There was a case in 1802, Richardson v Claney [the judgment of which is set out in a footnote to Newell v Weeks] where the Court held that though a party was not strictly bound by proceedings in poenam, yet in justice he could not be allowed to proceed. Another case comes nearer the present, where the Court held that the next of kind, being privy to the probate and acquiescing in the will, was not at liberty to put the executor on proof, even though the will had not been proved per testes. I allude to the case of Hoffman v Norris and White [the judgment in which is reproduced in a note to Newell v Weeks]. This case establishes that it is not necessary, in order to bar a party from proceeding, that he shall actually have been cited here; but the Court looks to the substantial justice of the case: the next of kin, though acquainted with the will in that case, and though he had actually averred the validity of it in the Court of Chancery, yet was totally ignorant of the circumstances under which it had been made, or the state of incapacity of the deceased, or other circumstances, rendering the will invalid. ... The will had not been proved per testes at all; and yet the Court held that, under the acquiescence of nine years and without cause shewn, the party was barred from calling upon the executor to prove the will per testes; and that, before he could do so, he must explain and account for the delay which had taken place." 141Newell v Weeks, by itself and by its approval of Hoffman v Norris and White, speaks directly to the facts of the current case. It does so across the spectrum of grants, common form no less than solemn form. 142The element of delay, in both Newell v Weeks and Hoffman v Norris and White, was greater than any delay found in the current proceedings. However, where a claim for revocation of a grant has been barred by reason of the applicant's delay there have generally been other features beyond mere delay; there has been not only delay, but acquiescence in the grant, or the delay has been such that there would be no utility in revoking the grant: Dickman v Holley [2013] NSWSC 18 at [136]. The length of delay, though relevant, is not necessarily a decisive factor. 143Importance may attach to the foundation of the reasoning of Newell v Weeks in probate practice, rather than in a substantive law concept such as "estoppel" has become at common law and in equity because of the different dynamic that may attend practice decisions. 144Considerations of "practice" are particularly important in the exercise of probate jurisdiction. The subject matter of decision-making there focuses upon the management of property, advancement of the testamentary intentions of deceased persons and the accommodation of the interests of others not present before the Court. Account may need to be taken of strong public interest considerations not raised by adversarial litigation in other types of proceedings.

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.

English Probate Law and Practice as Received in NSW 182The last two editions of Richard Burn's standard work on The Ecclesiastical Law were published in 1824 (8th edition) and 1844 (9th edition), dates which straddled NSW's legislatively imposed date of reception of English law (25 July 1828). 183The following extracts from volume 4 of the 9th edition of The Ecclesiastical Law provide insight into the distinction between grants in common and solemn form, even today. What are here depicted as topic headings appear, in the original work, as marginal notes. Footnotes are omitted but, it might be noted, a footnote on p 315 records a note by the editor that "[it] seems to be held by the authorities at Doctors' Commons, that the new Will Act has made no alteration" in relation to the manner of proving a will: "Two Manners of proving the Will The manner and form of proving testaments is of two sorts: the one is called the vulgar or common form; the other is termed the solemn form, or form of law. I. Probate in common Form. 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 vivâ 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 [pp 315-316] ... II. Probate in Solemn Form of Law. 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 proferreth 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 secretary 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 are published, and in case the proof be sufficient, the judge doth by his sentence or decree pronounce for the validity of the testament. How it differs from Probate in Common Form. Which difference of form in proving the will 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 meantime, 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 retain its full force [p 318]." 184Burn was supplanted as an English practice book by Williams. However there was, in relation to the topic of "proof of wills" in common and solemn form, little innovation. Both authors largely followed the traditional preoccupation of English law with action-based jurisprudence evident in Swinburne and Godolphin. 185The following extracts are taken from Part 1 Book IV Sections III and IV of Williams' first (1832) edition, with footnotes, including express acknowledgement of Swinburne and Godolphin, omitted: "SECTION III Proof of Will in Common Form A testament may be proved in two ways: either in Common Form, or by form of Law; which latter mode is also called the Solemn Form, and, sometimes, proving per testes. A will is proved in common form, when the executor presents it before the Judge, and in the absence, and without citing the parties interested, produces witnesses to prove the same; who testifying, by their oaths, by the testament exhibited is the true, whole and last will and testament of the deceased, the judge, thereupon, and sometimes upon less proof, doth annex his probate and seal thereto. ... Where a will is perfect, on the face of it, it is only required for probate in common form, where there is no subscribing witness, that an affidavit should be made by two persons to the signature of that will being in the handwriting of the testator. If the will is attested by one subscribing witness, the affidavit of one person to handwriting, is then only required: and if it be attested by two subscribing witnesses, then the oath of the executor alone is sufficient, without any affidavits to the writing. ... But where probate in common form is sought of an instrument which, on the face of it is imperfect, (whether the imperfection consist in its being incomplete in the body of it, or merely in the execution, as in the want of signature, or of subscribing witnesses where there is an attestation clause, or the like) two things are required by the Court before probate will be allowed. 1. There must be affidavits stating facts, which, if established in solemn form of law, (ie by plea and depositions) would sustain the instrument, as a will, in case it were disputed. 2. There must be consent, implied or express, from all parties interested. Therefore, as on the one hand, however complete the consent of the parties interested, the Court will not grant probate in common form of a testamentary paper, which the Court is convinced could not, if opposed, be maintained as a will: so, on the other, although the affidavits disclose a case, which might, supposing the will were contested, establish the instrument as testamentary, the Court will refuse probate in common form unless the parties interested are consenting or cited. ... SECTION IV PROOF OF WILLS IN SOLEMN FORM OR PER TESTES When a will is proved in solemn form, it is requisite that such persons as have interest (that is to say, the widow and next of kin of the deceased, to whom the administration of his goods ought to be committed, if he died intestate) should 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 who prefers 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 secretary 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 are published, and in case the proof be sufficient, the Judge by his sentence of decree, pronounces for the validity of the testament. The difference between the common form and the solemn form, with respect to citing the parties interested, works this diversity of effect; viz. that the executor of the will proved in common form, may, at any time within 30 years, be compelled, by a person having an interest, to prove it per testes in solemn form. ... so that if the witnesses be dead in the meantime, it may endanger the whole testament: Whereas the testament being proved in form of law, the executor is not to be compelled to prove the same anymore; and although all the witnesses afterwards be dead, the testament still retains its full force. Hence, not only are wills proved in solemn form, at the instance of persons who desire to invalidate them; but the executor himself may, and in prudence often does, for greater security, propound and prove the will, in the first instance, per testes, of himself, citing the next of kin, and 'all others pretending interest in general,' to 'see proceedings;' which being done, the will shall not be set aside afterwards (provided there be no irregularity in the process) when the witnesses are dead. The next of kin, as such merely, are entitled to call for proof in solemn form of the deceased's will, of common right. And the mere acquiescence of a next of kin, to the probate being taken in the common form, is no bar to the exercise of this right, even though he has received a legacy as due to him under the will; for he is still at liberty to all in the probate, and put the executor on proof of that indentical [sic] will per testes. ... However, long acquiescence, unaccounted for by any special circumstances, and acts done by a next of kin under the provisions of the will, may (if no fact appears, which excites a reasonable suspicion of the genuineness or validity of the will) amount to such a waiver of his rights, as to preclude him from putting the will in suit. Still, before a legatee, who has received all or part of his legacy, can be permitted thus to dispute the will, he must bring into court the amount of the legacy paid to him, to abide the event of the suit. But when the executor propounds and proves the will, per testes, of himself, duly citing the next of kin 'to see the proceedings', all next of kin so cited, are generally speaking, thereby for ever barred; and if he so propounds and proves the will against certain only of the deceased's next of kin, without having cited them all to see proceedings, the others, even though uncited, if to a certain extent privy to, and aware of the suit, shall not put the executor on proof, per testes of the will, so once already proved, a second time. ..." (Paragraphs 188-194). 186The historical continuity which characterised standard texts on the probate jurisdiction at the time of NSW's reception of English law should not obscure the fact that they treated the distinction between common and solemn form grants as one governed by practice and procedure. 187As in other areas of "received" law, in early colonial days the Supreme Court of NSW applied English probate law and practice with pragmatism, borne at times of indifference, until the latter years of the 19th century: JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), p 133. 188The passage of the Probate Act 1890 NSW (which abandoned reference to the "ecclesiastical" jurisdiction) was sponsored by Sir William Montagu Manning (1811-1895) and Charles James Manning (1841-1898), and administered by the latter as the Court's first designated "Probate Judge", under the new legislation, until his death in 1898. Not, it seems, until about that time was rigour brought into administration of the Court's probate jurisdiction. Its assimilation with then current English practice would not, presumably, have been unaided by the emergence of WG Walker as a leader of the Equity Bar and Probate Judge. 189Be that as it may, by the time Walker J had retired, the first (1906) edition of RE Kemp's Wills, Probate and Administration had been published. Between 1908-1938 (inclusive) it, or a later edition, was the standard NSW text on probate law and practice prescribed for the undergraduate study of law at Sydney University. Its treatment was more emphatic than close attention to historical precedents, or later practice, might justify, as may be seen in the following commentary on s 40 of the Wills Probate and Administration Act 1898 NSW (still in force as s 40 of the Probate and Administration Act 1898 NSW): "Form of probate - Probate may be granted either in common form or in solemn form. The latter, which is also called per testes, may be demanded of right by the next of kin or any other person who would be entitled on intestacy; and neither the mere lapse of time, nor acquiescence in the will, nor acceptance of legacies, is a bar to this right (Merryweather v Turner, 1844, 3 Curt. 802; In re Goode, 1890, 11 NSWR, Eq. 281). Such proof is conclusive, but proof in common form is not so (3 Bac. Ab. 465), and will not be granted in respect of a lost will (Goods of Pearson, 1896, P 289), except in some cases where the estate is very small (Goods of Apted, 1899, P 272). As to the effect of probate, see s 44." 190The commentary on s 44 (still, substantially, in force as s 44(1) of the Probate and Administration Act 1898) included the following as to the effect of a grant of probate: "The grant of probate, when made and while continuing unrevoked, is conclusive proof of the testamentary character of the instrument (Douglas v Cooper, 1834, 3 My. & K. 378); of the appointment of the executor (Griffiths v Hamilton, 1806, 12 Ves. 298; Lyons v Baker, 1884, 5 NSWR 282); of the validity and contents of the will (Whicker v Hume, 1858, 7 HLC 124; Ex parte Brown, 1869, 8 SCR 332); in every part of it (Plume v Beale, 1717, 1 P. Wms. 388); and as to whether or not the will is contained in distinct instruments (Baillie v Butterfield, 1787, 1 Cox, 392). Nor can the grant be impeached in any other Court even by evidence of fraud (A.-G v Partington, 1864, 3 H & C 204; Re Ivory, Hankin v Turner 1878, 10 CD 372). The grant of administration is similarly conclusive as to who is entitled thereto (Barrs v Jackson, 1845, 1 Ph. 582; Re Ivory, Hankin v Turner, 10 CD 374). Consequently payment to one who holds a grant discharges the debtor, even though the grant be afterwards set aside (Allen v Dundas, 1789, 3 T.R. 125; see also s 90, post). But a grant is not conclusive as to collateral matters, such as forgery of the will (R v Buttery 1817, Russ & RCCR 342); the testator's subsequent marriage (Blackham's Case, 1707, 1 Salk. 290; Brown v Rattray, 1869, 8 SCR 323), or death (Moons v de Bernales, 1826, 1 Russ. 301; but see Tourton v Flower, 1735, 3 P.W. 370); or the jurisdiction of the Court (Allen v Dundas, ubi sup.; Marriott v M., 1726, 1 Str. 671)." 191This addendum to Kemp's discussion of the "Form of Probate" is not materially different from the treatment afforded to "Probate Decisions" in the chapter dealing with "Parties...: Decisions in Rem" in Spencer Bower and Handley, Res Judicata (Lexis Nexis, UK, 4th ed, 2009) at [10.26] on p 166. The essential point is that a grant of probate or administration is effective unless or until set aside, and it may have operative significance beyond parties to the particular proceedings in which it was made: Birch v Birch [1902] P 130 at 137-138. This underscores the character of a grant as an order of the Court, and as an instrument of title. 192The second (1948) edition of Hastings and Weir's Probate Law and Practice may be taken as establishing a benchmark for NSW practice before, in the last decades of the 20th century, winds of change began to gather force: "Form of Probate. A will may be proved in either common form, or in solemn form. Probate in common form is a method of proof by affidavit evidence, which is adopted where the will is not contested and of clear validity. ... Proof in common form is not conclusive and the executor and all persons whose interests are adversely affected are entitled without any limitation as to time [Re Goode (1890) 11 LR (NSW) Eq 281; 22 Austn Digest 373, but delay will disentitle the applicant to any indulgence at the hands of the Court; Blake v Knight (1843) 3 Curt. 547], to have the will proved in solemn form. Proof in solemn form is proof by means of a suit in which the persons interested are parties, the evidence being taken orally. A will proved in solemn form is a res judicata and is conclusive between the parties except in the case of fraud, or the discovery of a later will. An executor would therefore be well advised to have the will proved in solemn form wherever there is any likelihood of its validity being subsequently contested. ... Administration. Whereas probate confirms and recognises the appointment by a testator of an executor, the appointment of an administrator is an original appointment by the Court..., and is the necessary foundation of the administrator's title..., without which generally speaking, no person can act as administrator. ... Where there is an absolute intestacy the grant is simple, but where a testator names no executor, or the named executor renounces, or predeceases the testator..., administration will be granted with the will annexed. ... [pp 148-149]." 193The present importance of this review of legal literature is that some of the technicalities that obscure an understanding of the essential functionality of probate law may reflect the reality of rules of court, and the dictates of court administration, not operative in contemporary Australia. 194In Bowler v Bowler (unrep, 18 December 1989) BC8901301 at 36, Young J warned that 19th century probate cases should be scrutinised carefully because they were decided at a time when procedural rules may well have been different to what they are today. More specifically, in Tobin v Ezekiel [2012] NSWCA 285 at [13],Campbell JA observed that it must be recognised that many of the earlier cases on revocation of grants of probate were influenced by the particular rules of court in accordance with which probate practice was conducted. 195Of greater significance may be the fundamental changes that have taken place in the legislative setting of estate management and the law governing succession to property, and in the paradigm of estate litigation, since the 19th century and, even, since (by the Supreme Court Act 1970 NSW) the Court adopted a Judicature Act system of court administration in 1972. Rules of inheritance and freedom of testamentary succession are not what they once were. The Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW has given way to the Family Provision Act 1982 NSW, and that Act has given way to chapter 3 of the Succession Act 2006 NSW. 196Litigants now routinely make strategic decisions about whether to "contest a will" in "probate proceedings" on an application for a grant in solemn form (with or without an application for revocation of a common form grant), or on an application for family provision relief, generally perceived to be a more cost effective option. A claim for family provision relief must be made within a limited time, presently (unless the Court, on sufficient cause being shown, otherwise orders) 12 months of the death of the deceased: Succession Act, s 58(2). 197When estate litigation is viewed in the context in which it commonly occurs, the presence of this time constraint may be a factor bearing upon the significance of delay in dealing with applications affecting grants of probate or administration, a factor utterly unknown to the judges (English or Australasian) whose learning on the distinction between grants in common and solemn form informs our understanding of probate practice. 198The Court's role in the management of estates is more extensive than it was before 1972, not only because of the availability of family provision relief, but because of the expansion of its protective jurisdiction, via supervision of enduring powers of attorney (Powers of Attorney Act 2003 NSW ); the availability of "statutory wills" for individuals lacking testamentary capacity (Succession Act 2006 NSW, ss 18-26 ); and the making, operation and supervision of guardianship and financial management orders for those unable to manage their own affairs (NSW Trustee and Guardian Act 2009 NSW; Guardianship Act 1987 NSW). 199Changes in the nature of the Court's role in the exercise of its probate and protective jurisdictions have been accompanied by a broader concern about the cost and efficiency of litigation, access to justice and case management, reflected in the Civil Procedure Act 2005 NSW Part 6 (especially ss 56-60), reinforced by AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. 200Underlying everything is the ubiquity of the electronic age, not only in administration of the Court, but in the community it serves. Widespread access to the internet, email facilities and other modes of electronic communication facilitate: (a) the process of bringing deaths, and applications for grants, to public notice; and (b) the process of engagement with the Court and other interested parties in proceedings affecting a deceased estate. A grant may soon take the form of an electronic document. 201The nature of decision-making processes of this character is such as to require both flexibility in management of the Court's business, and an express articulation of principles governing the conduct of that business. Principles implicit in action-based descriptions of legal practice must be spelled out when "forms of action" (to borrow terminology from the old, English Courts of Common Law) fade away or (as befits the distinction between grants in common and solemn form) cease to be widely understood. The law must speak to the generation it serves. 202Recent developments in court administration and techniques for the management of cases cannot be ignored upon the consideration of an application for revocation of an order of the Court (albeit an order in the character of a common form grant of administration) regularly made and entered in the records of the Court. The Court must control its own processes in the due administration of justice. The probate jurisdiction has its own dynamic, but it is not immune to broader concerns about the administration of justice.

Diversity in Statements of the Law 203There are marked inconsistencies in probate texts, matched by inconsistencies in judgments, as to the circumstances in which a grant of probate or administration can be revoked. 204Such inconsistencies, although marked, may be more apparent than real because the nature and quality of a grant may depend upon the particular circumstances of the case. When authorities speak of a grant in common form they may have in mind a grant founded upon a quasi administrative process in the course of which no interested person is given specific notice of the application for a grant, and a grant is made on the strength of no more evidence than production of an apparently rational will, regular in form and duly executed. On the other hand, they may have in mind a grant made, on notice to all interested parties (perhaps with the acquiescence of all interested parties), on extensive evidence bearing upon the validity and due execution of a will. Depending upon where the particular grant falls within the spectrum illustrated by these examples, a very different view may be taken of its revocability. 205Be that as it may, a grant in common form has been described as both "inherently revocable" (Dickman v Holley [2013] NSWSC 18 at [135]; Tobin v Ezekiel [2012] NSWCA 285 at [8]) and revocable for "cause" shown (In re Gillard [1949] VLR 378 at 382; Romascu v Manolache [2011] NSWSC 1362 at [176]; Neilson v Public Trustee (Powell J, unrep, 8 May 1992) BC 9201888 at 15; Bramston v Morris; Estate of Sini Sophia Murray (aka Sina Sophia Vecht) (Powell J, unrep, 20 August 1993) BC 9303644 at 20; Mohan v Broughton [1900] P 56 at 57). 206A grant in solemn form is sometimes described as revocable only where procured by fraud or where a later will is found (In the Estate of Kirs (1990) 55 SASR 61 at 68; Romascu v Manolache [2011] NSWSC 1362 at [179]) and, at other times, as revocable for the same reasons as a common form grant can be revoked: see, for example, RF Croucher and P Vines, Succession : Families, Property and Death; Text and Cases (Lexis Nexis Butterworths, Australia, 3rd ed, 2009), para [16.45], p 722, citing CJ Rowland in R Baxt and AP Moore (ed), An Annual Survey of Australian Law, 1992 (Adelaide Law Review Association, 1993), pp 464-465 which, in turn refers back to the same author's observations in R Baxt and G Kewley, An Annual Survey of Australian Law, 1987 (Law Book Co, Sydney, 1988), pp 316-317. 207The simplicity of Charles Rowland's primary proposition (that the grounds for revocation of a grant are the same whether the grant was made in common or solemn form) is qualified by his associated proposition: that "[the] real difference in effect between a grant in common form and a grant in solemn form is that ... the grant in solemn form is a res judicata and, generally, conclusive between the parties". 208The same point is expressed by Professor Certoma (in his The Law of Succession in New South Wales (4th ed, 2010), paragraph [14.270] at p 275) in the following terms (incorporating his footnoted case references in his text): "The essential difference between grants in common and solemn form is that the latter binds all persons who are party to the proceedings as well as all persons who are aware both of the existence of the proceedings and of their interest in them: Newell v Weeks (1814) 2 Phill 224; 161 ER 1126; Young v Holloway [1895] P 87. A grant in solemn form may nevertheless be set aside by such persons on the following grounds: where the grant was obtained by fraud [Priestman v Thomas (1884) 9 PD 70; Birch v Birch [1902] P 62]; the discovery of a later will or that the will admitted to the grant had been revoked by marriage or termination of marriage; and the existence of factors which prevented the person opposing the grant from appearing at the original proceedings [see Re Barraclough [1965] 2 All ER 311 at 316; Re Langton's Estate [1964] P 163]. Strangers to the proceedings, who are therefore not bound by the res judicata nature of the judgment, may re-open the matter on any ground and if the grant is revoked this will also apply for the benefit of persons party or privy to the earlier proceedings". 209A difference between Rowland and Certoma appears, here, to be that the former is, but the latter may not be, prepared to assimilate the grounds for revocation of the two forms of grant so far as they are not subsumed in "the res judicata nature" of a judgment. 210Difficulties of analysis in this area of the law have their origins, in part, in three phenomena. First, the deceptive certainty attaching to the distinction between a grant in common form and a grant in solemn form. Secondly, the diversity of circumstances in which occasion may be had for the revocation of a grant. Thirdly, the ultimate focus of all decision making on the due administration of deceased estates, involving discretionary decisions about the management of property, persons and relationships.

The Central Purpose of Probate Jurisdiction 211The central object which the Court must keep in view in the exercise of probate jurisdiction generally, and in dealing with applications for the revocation of a grant in particular, is the due and proper administration of the particular estate before the Court (having regard to any testamentary intention of the deceased and the interests of parties beneficially entitled to the estate): In the Goods of William Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192; Bath v British and Malayan Trustees Limited (1969) 90 WN (Pt 1) (NSW) 44 at 49; The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 at [23]; Estate Wight; Wight v Robinson [2013] NSWSC 1229 at [17]-[20]. 212Probate litigation is "interest litigation" (Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631 at 634 B-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: Boland v Nahkle; Re Estate of Talbot (Powell J, unrep, 6 April 1992) BC9203240 at 4-5; The Public Trustee v Mullane; The Estate of RWC Mullane (Powell J, unrep, 12 June 1992) BC9201821 at 4-5; Bull v Fulton (1942) 66 CLR 295 at 337, citing Baskcomb v Harrison (1849) 2 Rob Ecc 118 at 121-122; 163 ER 1262 at 1263-1264; In Re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137 at 145-146; Pettit v Mowder [1957] St R Qd 493 at 494 and 497; Hughes v Public Trustee (unrep, NSWCA 19 August 1980); GS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (LBC, Sydney, 1996), paras [40.67]-[40.68]. 213Generally speaking, an interest sufficient to entitle a person to oppose a grant is sufficient to entitle the same person to apply for revocation of a grant: In re Gillard [1949] VLR 378 at 381. 214As appears in Osborne v Smith (1960) 105 CLR 153 at 158-159, the fact that probate proceedings are "interest litigation" is central to the practice of the Court binding a non-party to the proceedings to a grant made in circumstances in which he or she had notice of the proceedings. In the current proceedings, the deceased's step children are, relevantly, in the same interest because they are both beneficiaries under the 1993 will, and not otherwise. 215Descriptions of probate proceedings as "interest litigation" (and association of such descriptions with the concept of what it is to be a party to, or bound by, the outcome of probate proceedings) demonstrate the central focus of the probate jurisdiction on rights to property, governed by a law of succession that endeavours to respect decisions made by an autonomous property owner in anticipation of death, and post-death claims of family and community, the due administration of which is entrusted to judicial officers bound to act in accordance with the traditions of their office. 216When lawyers talk of a grant of probate operating "against the whole world" or of a grant operating in rem, they are talking the talk of property law. 217Some of the obscurities of probate law and practice fade away when viewed from that perspective, coupled with an appreciation of the role of a grant of probate or administration as an instrument of title to estate property. As death is an ordinary incident of life, private and public interests coincide in a need for law, duly administered, to regulate the passing of property between generations. The utility of technicalities encountered on an exercise of probate jurisdiction must, ultimately, be tested against the purpose served by the jurisdiction.

The Distinction between Common and Solemn Form Grants 218The distinction between a grant of probate or administration "in common form" and a grant "in solemn form" depends essentially on long established practice. 219The distinction often depends for its elaboration on a contrast between the two forms of grant in terms of designation, process and effect. 220A clue to the essence of the distinction may be found in alternative designations sometimes given to the different forms of grant. A grant in common form is sometimes described as a "non-contentious grant" whereas a grant in solemn form is sometimes described as a "contentious grant": Tsagouris v Bellairs [2010] SASC 147; 5 ASTLR 403 at [35]-[36]; Romascu v Manolache [2011] NSWSC 1362 at [175] and [177]. A will admitted to probate in solemn form is sometimes said to have been proved per testes (eg, In Re Goode (1890) 11 NSWR (Eq) 281 at 283), reflecting the fact that, for such a grant, proof of due execution of a will, via the evidence of an attesting witness, is generally regarded as necessary: Wheatley v Edgar [2003] WASC 118; 4 ASTLR 1 at [22]-[24]. 221When elaborated by reference to the process leading to the making of a grant, the focus is generally on whether the application for the grant is, or is not, contentious and whether all persons interested in the application have been given notice of the proceedings: Mortimer v David; Estate Dawn Audrey Day, deceased [2005] NSWSC 1166 at [28]. 222Not uncommonly, the distinction between a common form grant and a solemn form grant is sufficiently elaborated by description of a process commonly associated with a grant in solemn form. That was enough in Telfer v Telfer [2014] NSWCA 186 at [5] where one finds this: "A will is proved in solemn form when it is propounded in an action to which interested parties are joined and the Court rules on validity after hearing evidence: LG Handler and R Neal, Mason and Handler Succession Law and Practice New South Wales at [1181.2]". 223When elaborated in terms of the effect of a grant, a grant in common form is sometimes described as "interlocutory" (Richardson v Rearden [2006] NSWSC 1252 at [16]; Caldar v Public Trustee [2003] NSWCA 187 at [5]-[6]) or "inherently revocable" (Dickman v Holley [2013] NSWSC 18 at [135]; Tobin v Ezekiel [2012] NSWCA 285 at [8] ), whereas a grant in solemn form is said to be a final determination, against the whole world, not irrevocable but a judgment in rem not readily revoked ( Re Dowling; sub nom NSW Trustee and Guardian v Crossley [2013] NSWSC 1040 at [23]-[25]; Smith v Smith; Estate of Smith [2007] NSWSC 116 at [34]; Migneault v Malo (1872) LR 4 PC 123 at 135; In re Kuhl; Kuhl v Liebcheschel [1933] SASR 394 at 398). 224Colour may be added to these different perspectives by the observation that a decision to make a grant in common form may, generally, be taken in the absence of any person and, in comparative terms, administratively, whereas a decision to make a grant in solemn form is generally made, or following a hearing, in public, after evidence is adduced. 225These types of elaboration provide a working understanding of the distinction between "common form" and "solemn form" grants. However, they do not serve every purpose. A description of differences between the two forms of grant stops short of identification of criteria for making a decision whether to grant one form or the other. 226The line between the two forms of grant can, in a particular case, appear blurred on an application for revocation. This might occur, for example, where a common form grant has been issued by the Court without knowledge that all interested parties have been given express, informal notice of the impending application for a grant and have acquiesced in its being made. This appears to be such a case. 227In part, the line between the two forms of grant might appear blurred on a revocation application because the one concept ("revocation") is called in aid in divergent circumstances. For example, an applicant for a revocation order might challenge the validity of a will the subject of a grant or, accepting the validity of the will, merely seek to challenge, or change, the identity of the deceased's personal representative. A challenge of the former type might, not uncommonly, be expected to challenge the ultimate entitlements of beneficiaries. A challenge of the latter type might, not uncommonly, be focussed entirely on due management of the deceased's estate.

A Grant bears the character of a Court Order 228A grant of probate or administration, in whichever form it takes, is a judicial act in the character of an order of the Court: Romascu v Manolache [2011] NSWSC 1362 at [174]; Tsagouris v Bellairs [2010] SASC 147; 5 ASTLR 403 at [35]; In Re Kuhl; Kuhl v Liebcheschel [1933] SASR 394 at 398; In re Ivory; Hankin v Turner (1878) 10 Ch D 372 at 375. 229The character of a grant as an order of the Court lies at the heart of different approaches available, procedurally, where an application is made for "removal" from office of one of several administrators. Traditionally, the appropriate form of relief on such an application is an order for revocation of the grant of administration, coupled with an order for the making of a fresh grant and consequential orders: Morgan v MacRae [2001] NSWSC 1017 at [21]; Riccardi v Riccardi [2013] NSWSC 1655 at [8]-[12]. However, an alternative form of relief that is, as a matter of jurisdiction, available is an order that the co-administrator be removed from office, expressly without prejudice to the ongoing administration of the estate by the continuing administrator: Profilio v Profilio [1999] NSWSC 657 at [33]-[34]; McKerracher v McKerracher [2011] NSWSC 1288 at [10]-[14].

A Grant bears the character of a Title Document 230As explained in Riccardi v Riccardi by reference to Estate Wight; Wight v Robinson [2013] NSWSC 1229 at [16]), the traditional form of relief retains utility because a grant of probate or administration (as the case may be) serves, in concept and in the practice of estate administration, as an instrument of title. 231That is why: (a) an order for the revocation of a grant is preceded, or accompanied, by an order that the grant be delivered up to the Court or (as SCR Part 78 r 49 of the Probate Rules contemplates) deposited in the Registry so as to be, physically, within the custody as well as the control of the Court; (b) a grant issued in error can be recalled to the Registry for cancellation (Kozak v Berwecki [2008] NSWSC 39 at [3]); and (c) a codicil discovered after a grant of probate of the will it was intended to amend might be made the subject of a supplemental grant physically bound together with the original grant (Estate of James Wilson (1991) 24 NSWLR 334 at 341 E-F). 232A grant is in the nature of a grant of title to property, affecting the entitlements of everybody with a claim against an estate, with an associated public interest element in dealing with property. 233While the title of an executor is said, ultimately, to be derived from the testator's will (confirmed by the Court's grant of probate), the title of an administrator is said to be derived from the Court's grant of administration: Gertsh v Roberts; The Estate of Gertsh (1993) 35 NSWLR 631 at 635B.

The Nature of a Revocation Order 234Although it is customary to speak of a grant being "revoked" (consistently with the instrument of grant being recalled to the Registry of the Court) that is essentially a matter of language. A revocation order is, in substance, an order that a grant be "set aside": Mortimer v David; Estate Dawn Audrey Day Deceased [2005] NSWSC 1166 at [28]; Tobin v Ezekiel [2012] NSWCA 285 at [5]; Virginie-Pitel v Campbell [2010] NSWSC 1440 at [37]; In the Will of George Lamont (1881) 7 VLR (IP&M) 86 at 93 and 98. 235Under the general law, a revocation order renders a grant ineffective from the date the order takes effect, not void ab initio: Hewson v Shelley [1914] 2 Ch 13 at 27, 29, 30, 36 and 44, applied in Perpetual Trustee Co Limited v Satchell (1939) 39 SR (NSW) 335 at 345-347; 56 WN (NSW) 139 at 142; contra Ex parte Keegan (1907) 7 SR (NSW) 565 at 566. In any event, legislation now governs the effect of a revocation order, and provides qualified statutory protection for those who have acted in good faith on the grant revoked: Probate and Administration Act 1898 NSW, ss 40D, 81, 90 and 91.

The Character and Purpose of a Solemn Form Grant 236Upon determination of an application for a grant, the Court has a discretion about whether any grant to be made should be in common form or in solemn form. That discretion must be exercised judicially, having regard to whether all persons interested in the estate have had notice of the proceedings, and whether there is sufficient evidence before the Court of the validity of any will proposed to be made the subject of a grant to justify an order for a grant in solemn form. 237An order for a grant in solemn form is generally made only after the Court has received evidence tending to satisfy it that a form of administration "binding the whole world" should be made: Re Dowling; sub-nom NSW Trustee and Guardian v Crossley [2013] NSWSC 1040 at [24]-[25]. 238The existence of the discretion not uncommonly becomes manifest when the Court is invited to give effect to a compromise of contested litigation: eg, Wheatley v Edgar [2003] WASC 118; 4 ASTLR 1 at [19]-[30]; Tsagouris v Bellairs[2010] SASC 147; 5 ASTLR 403 at [37]-[39]. 239However, it is implicit in the consideration of any application for a grant in solemn form (including an application heard on an ex parte basis) when the Court routinely insists that the applicant prove: (a) the identity of each person adversely affected by the application; (b) that each person adversely affected has notice of the application; and (c) that any will or codicil sought to be proved was duly executed. 240As a matter of practice those are, generally, regarded as the elements necessary to be proved for a grant in solemn form. 241They find an echo in the long-standing practice of the Court that a caveator seeking only proof in solemn form (as distinct from reliance on a general caveat) is limited to putting due execution in issue, and to cross examining the attesting witnesses in respect of that issue: Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 236D-238F; The Public Trustee v Mullane; Estate of Mullane (Powell J, unrep, 12 June 1992) BC 9201821 at 5. A practice of Powell J, as the Court's probate judge, was not to make a grant in solemn form unless a party with an interest adverse to the making of such a grant, had first been allowed an opportunity to cross examine the attesting witnesses to the will the subject of the proposed grant: eg, Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht); BC 9303644 at 25-26. The practice of the Court in each of these cases is ultimately informed by case management considerations, as illustrated by the foundational judgment of Walker J in Beatson v Perry (1906) 6 SR (NSW) 167. 242The caveat procedure is but one manifestation of the Court's abiding concern to ensure that estate litigation is managed in an orderly manner, on notice to interested persons, with an insistence that a prima facie case be able to be demonstrated, if required, before an issue is permitted to go to a final hearing. A caveat is not a notice to a particular person, but, rather, a notice to the Court not to allow proceedings to be taken without notice to the caveator: Boland v Nahkle; Estate of Talbot (Powell J, unrep, 6 April 1992) BC 9203240 at 4; Moran v Place [1896] P 214 at 216-217 and 219-220; In re Emery [1923] P 184 at 187; In the Will of Mary Ann Clarke (1922) 22 SR (NSW) 228. A person who lodges a caveat without proper cause may be liable to a costs order: In re Emery [1923] P184 at 189; In the Will of Elizabeth O'Driscoll (1929) 29 SR (NSW) 559 at 561. 243The caveat procedure operates in tandem with, and in a manner converse to, the procedure whereby a party to proceedings may formally fix knowledge of them on an interested person by service on that person of a prescribed form of a "citation to see" the proceedings or its modern equivalent, a prescribed form of notice of the proceedings. 244Neither the caveat procedure nor the citation/notice procedure is essential to the operation of the principle of probate practice, grounded in Newell v Weeks (1814) 2 Phil. Ecc 224 at 230-234; 161 ER 1126 at 1129-1130, generally described in Australia by reference to Osborne v Smith (1960) 105 CLR 153 at 158-159. 245Nor are those procedures essential prerequisites to the Court's traditional, pro-active form of case management of probate litigation. Another means to the same end might simply be a directions hearing in which the Court insists that each party produce evidence bearing upon the existence or otherwise of a prima facie case of an issue tendered for trial. 246The Court may, in appropriate circumstances, waive strict proof of due execution, relying on a presumption of validity arising from the production of an apparently duly executed will, rational on its face: Blake v Knight (1843) 3 Curt 547 at 561 and 564; 163 ER 821 at 826. Cf, Romascu v Manolache [2011] NSWSC 1362 at [181]. 247Whatever overlap there may be in the susceptibility of a grant in common form and a grant in solemn form to an order for revocation, the Court generally approaches the making of an order for a grant in solemn form conscious that, in practice, such a grant is not as readily revocable as is a grant in common form, with the consequence that it should not be made too lightly or without due regard to the interests of persons not then present before the Court. 248In making an order for a grant in solemn form the Court must satisfy itself that there are reasonable grounds for a determination calculated, so far as the Court fairly can, to bring finality to any controversy about the testamentary intentions of the deceased, if any. The object of an application for a grant in solemn form is to secure a judgment of the Court binding on all persons who might be entitled to challenge the validity of a will: Re Young, Hobbs v Christchurch City [1968] NZLR 1178 at 1178 (46). 249A grant expressly issued "in solemn form" is a judicial statement that, on the Court's then assessment: (a)all persons interested in the making of a grant (and, particularly, those with an interest adverse to the making of a grant) have been allowed a fair opportunity to be heard, with a consequence that principles about the desirability of finality in the conduct of litigation should weigh heavily on any application for revocation of the grant; (b)on evidence then formally noticed, the Court is satisfied that the particular grant represents, consistently with the law's requirement that testamentary intentions be expressed formally, an expression of the deceased's last testamentary intentions, if any; and (c)an order for a grant in solemn form appropriately serves the due administration of justice. 250Each of these interrelated topics requires elaboration. 251For two reasons, the first topic (the question of parties) is critical. First, unless all material, interested persons have been given due notice, an effective grant in solemn form cannot be made because an un-notified, absent person entitled to notice is likely in the ordinary course, by reason of non-notification, to have a reasonable prospect of success on an application for a revocation order. Secondly, if all interested parties appear before the Court or are demonstrated to have been given sufficient notice of the proceedings to be bound by any determination of the Court, the Court may have greater latitude than otherwise would be the case on an assessment of the evidence upon which a determination about a testator's testamentary intentions, if any, is to be made. 252In practice, an applicant for a solemn form grant generally will have served notice of the proceedings on all interested persons, and critical attention is focussed on the second topic; namely, the nature and quality of the evidence upon which to base a determination about a testator's testamentary intentions, if any. It is important, however, not to elevate the second topic above the first in order of importance. Both are equally important in one sense. However, critical attention needs to be given, in the first instance, to whether all interested persons have been identified and are likely to be bound by any decision made by the Court. 253The third topic (the due administration of justice) generally occupies background territory in all cases. 254The Question of Parties. The first topic engages, and interrelates with, the principles governing finality of judgments, including those relating to: (a)res judicata and issue estoppel, as explained in Blair v Curran (1939) 62 CLR 465 at 531-533; (b)the related principle discussed in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 598-604 by reference to Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319 (as applied in Richardson v Pedler [1999] NSWSC 980 at [19]-[21]); and (c)the myriad of cases dealt with under the rubric of prevention of abuses of the processes of the Court. 255In this last category are cases in which the Court stays or dismisses proceedings the continuation of which would be oppressive or vexatious: Walton v Gardiner (1993) 177 CLR 378 at 392-393. It extends to the prevention of an abuse of process where a party attempts to re-litigate an issue decided in earlier proceedings against another party (Reichel v Magrath (1889) 14 App Cas 665 at 668; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414; Rippon v Chilcotin Pty Limited (2001) 53 NSWLR 198), and to a case in which the moving party has, or must be assumed to have, a prima facie case (Williams v Spautz (1992) 174 CLR 509 at 518-519 and 522). 256Examples of orders made for the prevention of an abuse of process in the probate jurisdiction include the following: (a)a case in which a litigant seeks, by formal restatements of questions in dispute, to re-litigate the same substantive issues: Edwards v Boyd (1958) 75 WN (NSW) 525 at 527-528. (b)a case in which an application is incapable of leading to any beneficial outcome: Willis v Earl Beauchamp (1886) LR 11 PD 59. (c)a case (not unlike the present one) in which an interested party stands by, acquiescing in a grant in common form notwithstanding knowledge of facts which, if accepted, suggest that the will the subject of the grant is invalid, subsequently applying for a revocation order coupled with an application for family provision relief: Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (Powell J, unrep, 20 August 1993) BC 9303644 at 24-25. 257Not everything decided in a probate suit has that degree of finality in the determination of legal rights necessary to constitute a "final" judgment (within the meaning of Hall v Nominal Defendant (1966) 117 CLR 423 at 439-440 and 443; Licul v Corney (1976) 180 CLR 213 at 220 and 225; and Carr v Finance Corporation of Australia Limited [No 1] (1981) 147 CLR 247 at 248 and 253-254) for the purpose of attracting the operation of res judicata principles. A determination that at the time a testator executed a particular will he lacked testamentary capacity would do so, but not necessarily a determination that "management" of a deceased estate be entrusted to an executor named in a will. 258A grant in solemn form is binding on the parties to the probate suit in which it is granted, on anyone who has been cited to see the proceedings (or, in the language of the current Probate Rules, given formal notice of the proceedings), and also on anyone of full capacity who has an interest in the suit, and knows of the proceedings, but chooses not to intervene: Osborne v Smith (1960) 105 CLR 153 at 158-159; Mortimer v David; Estate Dawn Audrey Day, deceased [2005] NSWSC 1166 at [28]; Young v Holloway [1895] P 87 at 89-90; In the Estate of Langton, decd [1964] P 163 at 171, 173, 175, 179, 181; Beardsley v Beardsley [1899] 1 QB 746; In re Kuhl; Kuhl v Liebcheschel [1933] SASR 394 at 398; Tobin v Ezekiel [2012] NSWCA 285 at [7]. The corollary of this is that a grant in solemn form will not bind a non-party to a probate suit who has not had notice of the proceedings and a right to intervene in them: Re Dowling; sub-nom NSW Trustee and Guardian v Crossley [2013] NSWSC 1040 at [24]; Young v Holloway [1895] P 87 at 90. 259Because an order that probate be granted in solemn form requires the Court to exercise an independent judgement, after constitution of an evidentiary foundation, there is no room for any concept of default judgment such as may attend proceedings on a pleaded common law cause of action (Re Dowling [2013] NSWSC 1040 at [25]). However, by contrast, the analogy of a "default judgment" may not be wholly inapt to describe the "interlocutory" character of a grant in common form: Caldor v Public Trustee [2003] NSWCA 187 at [5]. 260Nevertheless, a grant in solemn form may be set aside if made in the absence of an interested party prevented from participation in a hearing culminating in the making of the grant: Mortimer v David; Estate Dawn Audrey Day deceased [2005] NSWSC 1166 at [28], citing In re Barraclough, decd [1967] P1 at 11 and Re Izett [1982] 2 NZLR 425 at 427-429. This accords with a broader notion of natural justice inherent in judicial proceedings: Taylor v Taylor (1979) 143 CLR 1 at 4-5, 7-8, 20, 22. 261The Question of Evidence. The second topic highlights the priority given to a deceased person's final expression of testamentary intentions and the fact-based nature of the Court's inquiry about such intentions. At the same time, it recognises that discretion resides in the Court about the nature and scope of the evidence which is formally noticed on the making of a grant in solemn form: Executor Trustee Australia Ltd v Henderson [2006] SASC 82 at [30]; Wheatley v Edgar [2003] WASC 118; 4 ASTLR 1 at [24]. 262In the interests of the due administration of justice the Court may acquiesce in a procedural process in which selective notice is taken of some, and not other, evidence in order to accommodate an application for a solemn form grant in which all adversarial interests acquiesce. It is because of this possibility that the essential character of a solemn form grant cannot, for all purposes, be defined by reference to an evidentiary standard alone. 263The Court reserves a right to act expediently in the interests of the administration of justice: eg, Palin v Ponting [1930] P 185 at 188, applying Gornall v Mason (1887) 12 PD 142. It does not, and it is not required to, apply in every case a rigorous requirement, for a grant in solemn form, that it have no notice, in fact, of evidence casting doubt on the validity of an instrument propounded as the deceased's last will. Where it is proper and reasonable to do so, it can, in the interests of justice and the due administration of an estate, proceed on the basis of a formal notation of evidence tending to prove the validity of an instrument, allowing parties to discount other lines of inquiry. 264A particular illustration of the Court's ability to supervise, if not control, the process of taking evidence bearing on the validity of a will is its insistence that a witness to the execution of a will is a witness of the Court: Re Fuld [1965] P 405 at 409F-411B; Re Estate Pierobon, Deceased [2014] NSWSC 384 at [44]-[55], [62]-[64] and [70]-[71]. Probate litigation has an inquisitorial heritage not shared by common law adversarial contests. 265The Court's judgement call. There is, as the third topic suggests, a residual, evaluative phase of judicial decision-making in which the Court is called upon to determine that a grant in solemn form is appropriate to the justice of the case: In re Kuhl; Kuhl v Liebcheschel [1933] SASR 394 at 398. 266This element of the decision making process is, generally, less visible than those relating to the questions of parties and evidence. However, its existence is confirmed by authorities which point to the Court's discretion in: (a) declining to make a grant in solemn form, leaving an executor to a common form grant (Tsagouris v Bellairs [2010] SASC 147; 5 ASTLR 403 at 39); (b) insisting that an application be brought to prove a will in solemn form (Public Trustee v Guardian, Trust and Executor's Company of New Zealand Limited [1939] NZLR 613 at 643); or (c) referring an unresolved application for a grant to a registrar for investigation: Ajili v Dinica-Popp; The Estate of Mohamed Salah Ajili (Windeyer J, unrep, 19 December 1995) BC 9506827 at 16). 267It is also manifest in the following extract from the first (1832) edition of Williams (substantially reproducing a passage from the first (1673) edition of Godolphin): "SECTION II When the Will is to be proved. ... The time, after the testator's death, when the will is to be proved is somewhat uncertain, and left to the discretion of the Judge, according to the distance of the place, the weight of the will, the quality of the executors, the absence of the witnesses, the importunity of creditors and legatees, and other circumstances incident thereunto. ..." 268The regularity of form and process introduced into will-making by the English Wills Act 1837 (later adopted in NSW) may have contained the scope of the Courts' discretion; but it did not, and in the nature of probate jurisdiction could not, eliminate it. 269Insofar as the Court has a discretion, it is not at large. It is governed by the purpose for which the probate jurisdiction exists - the due and proper administration of the particular estate before the Court, having regard to any testamentary intention of the deceased and the interests of parties beneficially entitled to the estate. It is analogous to, and substantially coincident with, the focus of an exercise of equity jurisdiction on achievement of substantial, practical justice in decision-making about parties and procedure (Union Bank of Australia v Harrison, Jones and Devlin Limited (1910) 11 CLR 492 at 504-506; Ahmed v Chowdhury [2012] NSWSC 1452 at [26]-[51]; Wytcherley v Andrews (1871) LR 2 PD 327 at 328-329) and the form of relief to be granted (Vadasz v Pioneer Concrete (SA) Pty Limited (1995) 184 CLR 102 at 113-114; Bridgewater v Leahy (1998) 194 CLR 457 at 493-494). 270The interrelated nature of the three topics is, perhaps, most evident when the Court is called upon to make an order for a grant in solemn form giving effect to a compromise affecting the interest of a person given notice of the proceedings, but not notice of the terms of the compromise. A question may arise in such a case as to whether, in the interests of justice, the Court would be justified in giving effect to a compromise without first insisting upon service of reasonable notice of an application for it to do so: Wytcherley v Andrews (1871) LR 2 PD 327 at 329; Re West [1948] WN 432; In re Barraclough, deceased [1967] P 1 at 10-11 and 13-14. 271Because a grant of probate or administration is a public act, the Court will not make an order for a grant merely because parties have agreed that one should be made: Phillpot v Olney [2004] NSWSC 592 at [7]. Of itself, the consent of parties interested in an estate does not prove a will: In the Estate of Clarence Gilbert Alcorn (Powell J, unrep, 9 August 1991) BC 9101691 at 6, and Smith v Smith; Estate of Smith [2007] NSWSC 116 at [34], citing In the Goods of Watts (1837) 1 Curt 594 at 595; 163 ER 208 at 208 and In the Estate of Muirhead [1971] P 263 at 265-266 and 267-268 (and 269H). 272An order for a grant in solemn form is not usually made as a result of a bargain, but on the basis of at least some evidence justifying such an order, at least where a later will is pronounced against. That may be because the grant is perceived to be a "judgment in rem" but, essentially, it is because the document submitted to the Court for its approval as a testator's last will is the document of the deceased, not parties contesting its validity: Smith v Smith, Estate of Smith [2007] NSWSC 116 at [31]-[34], especially at [34]. Similar considerations apply on an application for a revocation order "by consent": In the Estate of Edwards (deceased) (1981) 28 SASR 380 at 384; Executor Trustee Australia Limited v Henderson [2006] SASC 82 at [26]-[29]. 273In any event, whatever may be the point of distinction between a grant in common form and a grant in solemn form, a grant is binding unless and until it is revoked (Virginie-Pitel v Campbell [2010] NSWSC 1440 at [37]; In re Ivory; Hankin v Turner (1878) 10 Ch D 372 at 374-375) and, in appropriate circumstances, any form of grant can be revoked: Mortimer v David; Estate Dawn Audrey Day Deceased [2005] NSWSC 1166 at [28]. 274There is room for debate about the circumstances in which an order for the revocation of a solemn form grant should be made, but that such a grant can be revoked is established. A grant is not, in its nature, irrevocable: Poulton v Adjustable Cover and Boiler Block Company [1908] 2 Ch 430 at 433.

Investigation of Title and Building an Estoppel : Due Administration of Estates, Testamentary Intentions and Title to Property 275A grant in common form is not unattended by a concern about the importance of finality in the conduct of litigation, but it does not have attaching to it the same impediment to a revocation order as attends a grant in solemn form. A grant in solemn form is, correctly, perceived to be more difficult than a grant in common form to have revoked because, by giving attention to the three topics earlier identified (parties, evidence and justice), the Court will have laid the groundwork for the operation of principles governing finality in court proceedings. 276In a perfect world, the task of the Court on the determination of any application for a grant of probate or administration is to identify the last valid expression of a deceased person's testamentary intentions (if any), and to order that a grant be made reflecting the true position regarding such intentions, so that the affairs of the deceased can be administered accordingly. Those with an interest in the deceased's estate, or with a claim against it, may depend upon a reliable certification of title to estate property represented by a grant made under the seal of the Court. 277In the less than perfect world in which human affairs must be conducted, the task of the Court remains one of attempting to establish the true position regarding the deceased's last valid expression of testamentary intentions, accepting that, even if abstract certainty cannot be achieved, the community depends on the Court to provide practical certainty by its certification of title to estate property in the form of a grant appropriate to the facts of the particular case: In the Estate of Muirhead, decd [1971] P 263 at 265E-G, followed in In the Estate of Clarence Gilbert Alcorn (Powell J, unrep, 9 August 1991) BC9101691 at 7. 278The Court generally discharges its obligation: first, by allowing the public, all persons with an interest in the particular estate and all persons with a claim on the estate, an opportunity to be heard before any form of grant is made; and, secondly, by remaining open to a review of a grant if sufficient cause is shown for it to do so. 279The idiosyncratic procedures deployed, upon an exercise of probate jurisdiction, in moving towards a decision to make a grant of probate or administration (for the purpose of such a grant being relied upon as an instrument of title) are akin to the Court insisting that an applicant for a grant both conduct a reasonable investigation of title to estate property, and "build an estoppel" against interests adverse to the grant sought: cf, Re Estate Late Chow Cho-Poon; Application for judicial advice [2013] NSWSC 844 at [118]-[119]. 280Publication of notice of an intention to apply for a grant, service of citations or other formal forms of notice of proceedings, the conduct of proceedings in public, requirements for the production of evidence and insistence upon a judicial (rather than a quasi-administrative) decision on the application, are all directed to the same end. 281The object is to allow, so far as may be material, "the whole world" an opportunity to object to a grant being made so that: (a) if an objection is made, it can be dealt with on its merits; and (b) if the opportunity is not taken up, a failure to object may operate as an impediment to a subsequent challenge to the grant. If a grant is to be effective in confirming, or conferring, title as against "the whole world", prudence generally dictates that "the whole world" be given prior notice of the grant. 282When the Court orders that a grant in solemn form be made it is providing a form of certification that, in making a grant of probate or administration and in issuing an instrument of grant under the seal of the Court, particular care has been taken to minimise the prospect of a later challenge to the title of property dependent upon the laws of succession administered by the Court. 283By these means, the Court endeavours, not only to give effect to a deceased person's final testamentary intentions (if any), but to facilitate a fair and orderly administration of property following the death of a person entitled to property.

Grounds for a Revocation Order 284In any event, on any application for revocation of a grant, close attention may need to be given to the facts of the particular case, with due regard to its procedural history and the due administration of justice. 285Unless and to the extent that the principles governing the finality of judgments apply, any and all grants of probate or administration are revocable for a cause shown, and only if a proper cause is shown. 286Use of the expression "cause shown" does not necessarily carry with it, as an essential incident, a statement about "onus of proof" of facts bearing upon whether a grant can, or should, be revoked. Upon an application for a revocation order a party may bear a forensic onus to persuade the Court, in one direction or another, but it is doubtful whether anybody universally bears a legal onus of proof. 287The case law is inconclusive, if only because of the diversity of circumstances in which a grant, and a revocation order, can be made: eg, In re Goode (1890) 11 NSWR (Eq) 281 at 285-286, 287 and 288; Birch v Birch [1902] P130 at 138-139; Woodhead v Perpetual Trustee Co Limited (1987) 11 NSWLR 267 at 273D-274B; Ajili v Dinica-Popp; The Estate of Mohamed Salah Ajili (Windeyer J, unrep, 19 November 1995); BC 9506827 at 2; Clay v Karlson [1999] WASC 205 at [4]; Mortimer v David; Estate Dawn Audrey Day, deceased [2005] NSWSC 1166 at [29]; Loupos v DemirgelisI [2008] NSWSC 1207 at [53]; Kozak v Berwecki [2008] NSWSC 39 at [3]; Tobin v Ezekiel [2012] NSWCA 285 at [9]-[18]. 288The decision for the Court is essentially one of case management, governed by the purposive character of probate jurisdiction, directed towards the due and proper administration of the particular estate and accommodation of affected interests: The Estate of Erminia Agnes Rogers; Rogers v Rogers [2009] WASC 358 at [23]. 289That said, the conduct of an application for a revocation order may be informed by the character of an order sought consequentially upon revocation of a grant. The Court will generally be mindful that the propounder of a will bears the onus of proving the will to be valid, according to established practice articulated in cases such as Re Eger; Heilprin v Eger (Powell J, unrep, 4 February 1985) BC 8500997 at 72-74; Re Hodges v Shorter v Hodges (1988) 14 NSWLR 698 at 704-707; Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 289-290; and Ridge v Rowden; Estate of Dowling (Santow J, unrep, 10 April 1996) BC 9601342 at 39-46. 290Nevertheless, upon an exercise of probate jurisdiction the Court exercises a vigilance beyond that necessary, or appropriate, in ordinary adversarial litigation. Questions of onus tend, in practice, to be governed not so much by who alleges what (Currie v Dempsey (1967) 69 SR (NSW) 116 at 125) as upon what it is that the Court, in all the circumstances, and informed by experience and considerations of fairness (JH Wigmore, Evidence in Trials at Common Law (Little Brown & Co, 3rd ed, 1940) volume 9 Book II), apprehends it must be satisfied of if a will is to be held valid. 291Presumptions that apply in the probate jurisdiction are settled in character, but fact-sensitive and essentially in the nature of standardised inferences from common experience rather than abstract rules of law: Actors & Announcers Equity Association of Australia v Fontana Films Pty Limited (1982) 150 CLR 169 at 213-215. In pronouncing for or against the validity of a will the Court must ultimately be guided by its conscientious assessment of the available evidence: Worth v Clasohm (1952) 86 CLR 439 at 452-453. 292No grant is made, or revoked, as of right even if, in particular situations (such as where, on an application for a revocation order, it is established that the testator is alive or that a grant was obtained fraudulently), the Court's order might reasonably be thought to follow from facts proved. More particularly, the Court generally reserves a right to decline to make a revocation order if not satisfied that there is utility in making the order: Willis v Earl Beauchamp (1886) LR 11 PD 59 at 61, 62, 63, 64 and 65; In re Goode (1890) 11 NSWR (Equity) 281 at 285-286, 286-297 and 287-288; Stanley v Stanley [2000] NSWSC 1133 at [11] and [33]-[34]; Richardson v Rearden [2006] NSWSC 1252 at [19]-[21]; Tobin v Ezekiel [2012] NSWCA 285 at [5]-[9]. 293I adopt, as substantially correct, the following observations of Powell J in Neilson v The Public Trustee; the Estate of EL Neilson (unrep, 8 May 1992) BC 9201888 at 14-15 (repeated in Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (unrep, 20 August 1993) BC 9303644 at 19-20, and applied by Bryson J in Stanley v Stanley [2000] NSWSC 1133 at [8] and Campbell J in Richardson v Rearden [2006] NSWSC 1252 at [16]): "That the Court possesses, and, when necessary and appropriate, will exercise, the power to revoke a grant which it has made - even after the death of the original grantee (see, Ayling, deceased January (1949) (UK) unreported, but noted [in] Tristram and Coote's Probate Practice 24 Ed (1973) at 470 [;] In re Gillard (1949) VLR 378) is undoubted, the classes of case in which the power has, in the past, been exercised being usually described as being: 1. where the grant is, in effect, a nullity; 2. where the surname or first Christian name, of the deceased in the grant is seriously incorrect; 3. where the grant has been obtained on a false, or incorrect, basis; 4. where, by reason of supervening events, the grant has become defective. (see, for example Tristram and Coote op cit at 426-433; Williams Mortimer and Sunnucks: Executors Administrators and Probate 16 Ed. (1982) at 335-339). It should, however, be noted that, although the power to revoke a grant undoubtedly exists, it is not exercised as a course, or even as matter of right; rather, the question whether, in a particular case, the power ought to be exercised is one which lies in the discretion of the Court, having regard to all the circumstances of the case (In the Will of Lamont (1881) 7 VLR (IP and M) 86; In re Goode (1890) 11 NSWLR (Eq) 281; In re Gillard (supra)). Since that discretion is to be exercised after having regard to all the circumstances of the particular case, it is undesirable - and, in any event, probably impossible - to attempt to lay down, in advance, any general principles as to the way particular circumstances ought to affect the exercise of that discretion. However, having regard to the particular features of [a] case, it may be instructive to look at the way such questions as long delay, estoppel and the concept of abuse of process have been regarded over the years ...". 294In my opinion, these observations apply, with equal analytical force, to both common form and solemn form grants, subject only to such (if any) deference due to principles governing the finality of judgments in the particular case. 295The distinction between a grant in common form and a grant in solemn form is not so clear, analytically, to warrant different treatment governed by the form of the grant alone. 296A grant in common form can be made at the conclusion of contested proceedings: eg, Loupos v Demirgelis [2008] NSWSC 1207 at [1]-[2], [54] and [57]. A grant in solemn form can be made notwithstanding the absence of any contest (In re Levy, deceased [1953] VLR 652), the critical factor being service of notice of the proceedings on all interested persons: Mortimer v David; Estate Dawn Audrey Day, Deceased [2005] NSWSC 1166 at [28]. . 297The fact that a grant in solemn form can be revoked if procured by fraud (In re Gillard, deceased [1949] VLR 378 at 382-383; Birch v Birch [1902] P 62 and 130) is not a point of distinction because all court orders, including a grant in common form, are liable to be revoked if obtained by fraud. 298Nor is the fact that a solemn form grant (like a common form grant) can, without controversy, be revoked if a subsequent, valid will later comes to the attention of the Court. Its significance is, rather, as a demonstration that principles governing res judicata cannot be applied in the probate jurisdiction (in the context of either form of grant) unqualified by the public interest in giving effect to a testator's last known, due expression of testamentary intentions. 299If, as Newell v Weeks (1814) 2 Phil Ecc 224 at 230-234; 161 ER 1126 at 1129-1130 and Hoffman v Norris (1805) 2 Phil Ecc 230; 161 ER 1129 note (b) demonstrate, the principle (endorsed by Osborne v Smith (1960) 105 CLR 153 at 158-159) that a non-party who acquiesces in the making of a grant may be bound by it can apply to a grant in common form, no less than to a solemn form grant, the foundation for a rigid distinction between the two forms of grant, on an application for revocation of a grant, is substantially undermined. 300The facts of a particular case, rather than merely the form of a grant, must be consulted. A contrast between Newell v Weeks, Hoffman v Norris, Bell v Armstrong (1822) 1 Add 365 at 375-376; 162 ER 129 at 132-133, Merryweather v Turner (1844) 3 Curt 802 at 817; 163 ER 907 at 912 and Mohan v Broughton [1899] P 211 at 217, 218-219 and 220 (and on appeal at [1900] P 56 at 58) demonstrates this. 301An occasion for the application of principles governing the finality of judgments arises most obviously when an application is made for revocation of a grant in solemn form. That is because: (a) the Court can reasonably be taken to have investigated questions about parties, evidence and the due administration of justice before making the grant; and (b) an applicant for a revocation order can reasonably be taken to have, at least, a forensic onus to displace findings expressly or impliedly made by the Court as a foundation for the grant. 302Nevertheless, a substantial occasion for the application of principles governing the finality of judgments may arise (as in these proceedings) on an application for revocation of a common form grant where it is established that a person with an interest adverse to the grant did, in fact, stand by and, without taking up an opportunity to intervene, allow the grant to be made. 303The distinction between common and solemn form grants is both real and useful as a rule of practice, but it is not, of itself, universally determinative of an application for revocation of a grant. Ultimately, the outcome of such an application may depend on the underlying facts of the particular case. 304It would be a vain effort, and an imprudent one, to endeavour, by emphatic statements, to constrain the Court's discretionary power to revoke a grant. There is, in the administration of justice generally and in the administration of estates, a need for principled flexibility in decision-making. 305The best that can be done is, perhaps, to recognise that: (a) all decisions about the revocation of grants should be made with the purpose served by the probate jurisdiction in mind; and (b) insofar as judicial decision-making may be assisted by reference to precedents, patterns of decision-making may, from time to time, be found in earlier cases. 306On a search for such patterns there are some constants. Chief amongst these are respect for the autonomy of the person whose estate falls for consideration, and the necessity to maintain the integrity of the Court's processes. 307In the former category fall cases in which a grant of probate or administration must be set aside because "the deceased" is found not to have been dead at the date of grant (Ex parte Keegan (1907) 7 SR (NSW) 565 at 566; Probate and Administration Act 1898 NSW, s 40C), and cases in which a grant should generally be set aside because of a subsequent discovery of a "last will". 308In the latter category are cases in which a grant of probate or administration is demonstrated to have been procured by fraud (Re Gillard [1949] VR 378), or by misstatements or material non-disclosure (Murakami v Murakami [2005] NSWSC 953 at [29]-[33]), or to be attended by an error affecting its efficacy (In the Will of Christian (1975) 25 FLR 89; Kozak v Berwecki [2008] NSWSC 39 at [3]). 309Even in these cases, irregularity in the making of a grant does not relieve the Court of a need to consider what, if anything, is necessary for the due administration of the particular estate, looking forward. 310Where, for example, a grant is made by error, despite the pendency of a caveat, proof of the error may justify an order for revocation of the grant (Kozak v Berwecki [2008] NSWSC 39 at [3]); but, before any revocation order is made, the Court may require evidence of a prima facie case that the will the subject of the grant is invalid: Swalwell v Swalwell (Needham J, unrep, 15 July 1988). 311Likewise, where a grant of administration is made irregularly, without due notice to an interested person, the Court might decline to make an order for revocation of the grant if there is no utility in doing so: Stanley v Stanley [2000] NSWSC 1133 at [8]-[11] and [33]-[34]. 312At the other end of a spectrum (if there be one)may be cases in which the entitlements of beneficiaries and creditors are not, in the abstract, at issue but due management of an estate is. Illustrations of cases in which a revocation order has been made in the interests of due management of an estate can be found in Estate of Erminia Agnes; Rogers v Rogers [2009] WASC 358 at [23]-[31]; Upton v Downie [2007] NSWSC 1095 at [44]-[56]; and Estate Wight; Wight v Robinson [2013] NSWSC 1229. Primary authorities governing such cases, in New South Wales, are Bates v Messner (1967) 67 SR (NSW) 187 at 191-192; 86 WN (Pt 2) NSW 35 at 39-40 and Mavrideros v Mack (1998) 45 NSWLR 80 at 1-7F-108C. 313Particular difficulties, about the integrity of court processes and the due administration of an estate, may be seen in a case in which repetitive or otherwise vexatious applications are made affecting an estate. It is in this context that principles governing the finality of court proceedings, or protection of the Court's processes against abuse, may have their greatest scope for operation. Edwards v Boyd (1958) 75 WN (NSW) 525 is an example of this. The Court was required, there, to take a stand against a litigant in person intent upon making successive applications, on different grounds, seeking to re-litigate the same substantive issues. 314Principles governing the finality of judgments may operate differently in the context of probate proceedings than in ordinary adversarial proceedings. That is because proceedings involving an exercise of probate jurisdiction may involve: (a) public interest considerations, about the due administration of a deceased estate, beyond those attending adversarial proceedings between litigants; and (b) criteria for the determination of the binding effect of a judicial decision that go beyond binding persons joined as parties to the proceedings. Depending on the facts of the case, there may be greater scope in probate proceedings for operation of principles against abuses of process than for an application of principles governing res judicata or issue estoppel. 315However, there is no inherent necessity to resort to the jurisdiction of the court to prevent abuses of process upon consideration of an application for the revocation of a grant. That jurisdiction has a negative, preventative character. It may be sufficient for the Court to act upon the positive, purposive nature of the probate jurisdiction, focussed upon the due administration of the particular estate. 316One reason why Newell v Weeks and associated cases (including Hoffman v Norris and White, Merryweather v Turner and Wytcherley v Andrews) may have become emblematic of probate practice is that, in themselves, they reflect a pattern in the conduct of probate litigation across the ages. Whether by accident or design, persons motivated by similar interests or objectives can be found to have stood by while some disputes have been played out, and to have endeavoured to intervene selectively or successively. In these types of case, the Court may be called upon to manage the conduct of litigation in varying degrees. 317In the exercise of its jurisdiction to revoke a grant the Court should be mindful that, in an appropriate case, it may be open to it to make an order on terms: for example, as to the payment of costs thrown away by a belated request for a will to be proved in solemn form, or for the provision of security for costs associated with a prospective application for proof in solemn form. Care needs to be taken, however, not to resort to the making of a conditional order for revocation which does not advance the purpose for which an exercise of probate jurisdiction exists.

A Checklist of Topics for Consideration 318Upon consideration of an application for revocation of a grant of probate or administration the Court might reasonably expect, at an early stage of the proceedings, to hear from contending parties reasons for, and against, the making of a revocation order. 319Historically, the Court has been mindful of a need to keep estate litigation under a tight rein. That necessity is reinforced by the "overriding purpose" (identified in s 56(1) of the Civil Procedure Act 2005 NSW) of facilitation of the just, quick and cheap resolution of real issues in proceedings. 320Without being prescriptive in any way, the topics upon which the Court might reasonably expect to receive assistance from parties before exposing an estate to expensive, protracted litigation include the following: (a)Whether the grant under challenge is expressed to have been a grant in solemn form. (b)In summary terms, the size and composition of the estate of the deceased at the time of death, and currently. (c)Whether any (and, if so, what) part of the estate has been distributed (and, if so, when and to whom). (d)The nature and foundation of the interest claimed in the estate by each applicant for a revocation order. (e)The nature and foundation of each competing interest. (f)The date, and circumstances, of each applicant's first knowledge of: (i)the death of the deceased; (ii)the application upon which the grant was made; and (iii)the grant. (g)The existence and duration of any delay on the part of an applicant in challenging any will, or grant, under challenge. (h)Any explanation for such delay. (i)The evidence relied upon in support of the grant as made. (j)Any Reasons published by the Court in support of the grant. (k)The grounds relied upon by each applicant to contend that: (i)the grant should be revoked; and (ii)any underlying will, or wills, should be held invalid. (l)The evidence available, or reasonably thought likely to be available, to each applicant in support of a prima facie case of invalidity of a will. (m)The nature and scope of any inquiries thought to be made by an applicant for the purpose of obtaining evidence in support of his or her application. (n)Whether there is now pending, or anticipated, a claim for family provision relief made in relation to the deceased. 321It may not be necessary, in a particular case, for all these topics to be canvassed. They are intended to be no more than an indication of potential topics of interest. The list is not exhaustive.

APPLICATION OF PRINCIPLES TO FACTS 322Upon consideration of the two motions before the Court, applying the principles elaborated in this judgment: (a)I have reminded myself of the central object of an exercise of probate jurisdiction in these proceedings - service of the due and proper administration of the estate of the deceased, having regard to any testamentary intention expressed by him and the interests of parties who may be beneficially entitled to the estate. (b)I have consulted each of the "check list" topics identified, in an endeavour to take into account all the circumstances of the case that may be material to the decisions required to be made. (c)I have measured the grant under challenge against the criteria for a solemn form grant (relating to the participation of interested persons, the sufficiency of evidence of testamentary intention and the due administration of justice) to gauge the quality of the grant, albeit nominally a common form grant. (d)I have viewed the facts of the case, and the quality of the grant, through the prism of probate law and practice in this State, as illustrated by Powell J's exposition, and application, of the principles governing a revocation order in Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (unrep, 20 August 1993) BC 9303644 at 19-25. (e)I have taken into account competing considerations arising from a need not to be too hasty in denying a party a full trial (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130) and case management considerations such as those canvassed in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 210 [90] - 215[103] and 217[112]-[113], endeavouring to accommodate the rights and obligations of particular litigants within the broader context of constraints on the availability of resources for the administration of justice generally. 323The grant of administration which the deceased's stepson applies, with the support of his sister, to have revoked is (albeit a grant in common form) a grant in which he acquiesced, in respect of a will the execution of which he procured, knowing at the time of its execution that the sole beneficiary named in the will was his stepsister and, with his daughter (granddaughter of the deceased), accepting at that time that a will in those terms (not unreasonably) represented the intention of the deceased. 324The stepson allowed his sister to be told, before the death of the deceased, that the deceased had made a will in her favour, but he did not (before the death of the deceased) convey to her his ex poste, private reservations about the validity of the will. By that delay, he denied her an opportunity to secure an independent assessment of the deceased's testamentary capacity and intentions. 325The will the subject of the grant is regular in form, although executed by a testator in a state of frailty. It was drafted by a solicitor instructed by the stepson, without any material involvement of the deceased's daughter beyond alerting him to the deceased's expressed desire to make a fresh will. 326The stepson and his daughter (the deceased's granddaughter) witnessed the will personally. They did so, openly, in the presence of an independent, objective observer: a member of the staff of the hospital in which the deceased was then a patient. The "hospital notes" recorded by that staff member are expressed in terms consistent with the deceased having duly executed the will, with knowledge of its contents. 327Having acquiesced in a grant of administration being made in favour of his stepsister, the stepson procured a renunciation of the office of executor by his daughter (granddaughter of the deceased) and her husband. The granddaughter, in fact, joined with her father in consenting to orders directed to that end. Both executors named in the will must be taken to have acquiesced in the grant made referable to it, notwithstanding that the will thus given effect favoured the interests of the deceased's daughter over those of the stepson, and (subject to any application made by him for family provision relief) left him with nothing. 328The stepson's acquiescence in the grant manifested a concern for his own interests. It reflected an acceptance that the will was valid. In common with his daughter and the solicitor then acting for them both, he went so far as to consent to an order that he pay costs of his stepsister referable to her motion for production of the will to the Court. He did not, at that time, apply for proof of the 1993 will in solemn form but, rather, determined that he would make an application for family provision relief predicated on the validity of the 2011 will. An affidavit sworn by him in his family provision proceedings expressly identified the 2011 will as the last will of the deceased. 329He could not but have been aware that, subject to his family provision application being determined in due course, he had deliberately chosen, at a time when he was legally represented, to accept the validity of the 2011 will. In the circumstances of this case, little weight can be attached to his protestation of ignorance of the distinction between a common form and a solemn form of grant. Nor can substantial weight be given to his profession of ignorance about the availability to him, and the possibility of a loss by him, of a right to apply for a grant in solemn form referable to the 1993 will. There is no evidence that provides a reasonable foundation for a finding of fact that discounts the competency of the lawyers who represented him in the administration proceedings or the quality of such legal advice as they may have given him. 330If the stepson were to be granted an opportunity to propound the 1993 will now, forcing his stepsister to apply for a solemn form grant referable to the 2011 will, each of the parties and the estate would be exposed to substantial legal costs (not readily able to be borne by the estate or any interested party) in litigation which would involve very substantial questions of credit, and could involve a myriad of witnesses beyond interested members of the deceased's family. 331The composition of the estate, not merely its size, is such as to have a substantial impact on the deceased's daughter of any application by the stepson (with or without his sister) to obtain it or a share in it. The deceased's principal asset is a half share of the residential property where he, and his daughter, lived for many years and in which she too has an ownership interest. The present significance of this is that the daughter has a particular, personal interest in an orderly determination of questions affecting the title to her home, and the Court should not lightly contribute to uncertainty of title by condoning disruptive changes of course in the conduct of estate litigation. 332The deceased's stepdaughter (sister of the stepson, who has had principal carriage of their disputation with the deceased's daughter) must be taken, objectively, to have acquiesced, with her brother, in his decision: (a) to facilitate a grant of administration in respect of the 2011 will; and (b) to refocus his attention on a family provision claim. 333She knew of the deceased's impending death, she attended his funeral. She sought to engage her stepsister in negotiations about his estate. She bore legal costs, in common with her brother, in his conduct of estate litigation against their stepsister leading to the grant of administration now sought to be revoked. Her evidence is reasonably open to a finding that her principal motivation is, and was at all material times, to support her brother's bid to obtain a share of their stepfather's estate rather than to advance her own interests. 334Given her evident subordination of her personal interests to those of her brother, there is nothing in his decision to divert his attention away from a probate suit towards a family provision application that compels a conclusion that she should not be bound by his "compromise" of the administration proceedings without insistence that she first be formally notified of the orders made in December 2012 and explicitly made a party to the proceedings. 335There is nothing in the conduct of the deceased's daughter that could fairly be said to make it unconscionable for her to resist the application for revocation of the grant made in her favour. She did not act unconscientiously in steps taken towards execution of her father's will. She did not act unconscientiously in the proceedings leading to the grant. She has not acted unconscientiously in resisting her siblings' application for revocation of the grant. 336Even if the evidence of the deceased's stepson and granddaughter were to be taken (as it could be) as having established a prima facie case that the 2011 will was invalid, the revocation proceedings constitute an abuse of the process of the Court. They are both vexatious and oppressive. The stepson, with the acquiescence of his sister, has engaged in litigation tactics ostensibly motivated by an avowed object of forcing a "settlement" of his claims on his stepsister rather than attempting to give effect to the deceased's intentions. It is, by no means, improper to harbour an honest, open aspiration for settlement of an estate claim. Here, however, the stepson has subordinated due administration of the estate to his own private interests in an endeavour to force his stepsister to a settlement. 337He has, by successive twists and turns, attempted to suppress knowledge of the 2011 will, failed in a timely way to propound the 1993 will in solemn form, acquiesced in a grant of administration in respect of the 2011 will, engaged his stepsister in family provision proceedings, and (in the absence of a family settlement) belatedly applied for a revocation order as a preliminary of an application for a grant referable to the 1993 will. He has done this, forcing his stepsister to incur substantial legal costs, without satisfying a costs order made against him in the administration proceedings. 338There continue to be reasonable grounds for regarding the 2011 will as the last valid will of the deceased, notwithstanding affidavit evidence to the contrary sworn by the deceased's stepson and granddaughter. The will is regular on its face. The deceased's daughter (as his only child) is the natural object of his bounty. The stepson and granddaughter accepted this at the time they arranged for the will in her favour to be executed. The hospital notes are consistent with the regular execution of a valid will. No suspicion attaches to the involvement of the deceased's daughter in the process. Evidence is available that, independently of the will, the deceased made statements indicative of a testamentary intention to favour his daughter. 339Due administration of the estate, and the interests of justice, favour a summary determination of the revocation proceedings. The deceased's stepson, with the acquiescence of his sister, deliberately chose to treat the 2011 will as valid as a foundation for a family provision claim, in circumstances in which, in the interests of justice, he should be held to that choice. That is so, whether the choice he made is to be construed as evidence of, or an admission about, the validity of the will, or a purely forensic tactic. There is no public interest impediment to him (and his sister) being held to that decision. He retains an opportunity to pursue his claim for family provision relief, albeit that he will require an extension of time if a grant of such relief is to be made. 340In the circumstances of this case, it would not be appropriate to make an order for revocation of the 2011 will on terms (for example) that the stepson bear the, or substantially all, costs of the proceedings to date. I am satisfied that, whether or not he could be said to have established a prima facie case of invalidity of the 2011 will, his application for a revocation order is an abuse of process. Were he to be granted a revocation order subject to an order that he pay or bear substantial costs, it might do no more than substantially diminish a small estate, given his financial circumstances, or accentuate the stepson's claim that he is in "need" of a grant of family provision relief. 341As it is, he may seek to pull himself up by his bootstraps in the family provision proceedings by reference to costs liabilities incurred in misconceived legal manoeuvres. Whether (and, if so, to what extent) he can do so is a question to be left to the judge allocated to determine those proceedings. 342In all the circumstances, I propose, summarily, to dismiss the revocation proceedings, leaving the deceased's stepson to such (if any) entitlements he may have in the family provision proceedings. I do not do so lightly. All three of the persons materially interested in the estate of the deceased acquiesced in the grant of administration now under challenge. The evidence upon which that grant was founded is not unequivocal, but it was sufficient to ground the grant, having regard to: (a) the involvement of the stepson in preparation of the deceased's will; and (b) his calculated decision to acquiesce in the grant and, in his own self-interest, to refocus his challenge to the will on a family provision claim. In doing so, he deliberately and publicly acknowledged the validity of the will. The due administration of justice, and of the estate of the deceased, favoured the making of the grant. 343All things considered, the interests of justice (and the due administration of the estate of the deceased) tell decisively in favour of: (a)preserving the operation of the grant of administration in favour of the deceased's daughter; (b)holding the stepson, and his supportive sister, to his deliberate decision to pursue such, if any, entitlement he may have to family provision relief; and (c)preserving a small estate from a second round of probate litigation designed, principally, to pressure the daughter into a settlement rather than to serve the deceased's testamentary intentions. 344Before dismissing the proceedings, in order to formalise the deceased's stepdaughter's status in the proceedings, I propose to order that she be joined as a plaintiff in the revocation proceedings, and that the draft amended statement of claim sought to be advanced by her and her brother stand as the form of originating process in those proceedings to be dismissed.

CONCLUSION 345Accordingly, I make the following orders and notation (in the proceedings numbered 2013/00322211): (1)ORDER that Yvonne Trakimas be joined as a plaintiff in the proceedings. (2)ORDER that Nicholas Lucas be designated the first plaintiff, and Yvonne Trakimas be designated the second plaintiff, in the proceedings. (3)ORDER that the plaintiffs be granted leave to amend the statement of claim in accordance with the form of "Amended Statement of Claim" annexed to the first plaintiff's Notice of Motion filed 13 March 2014. (4)ORDER that the Amended Statement of Claim annexed to that Notice of Motion stand as the plaintiffs' statement of claim in the proceedings. (5)ORDER that the proceedings be dismissed. (6)ORDER that the first plaintiff pay the defendant's costs of the proceedings (including the costs of her Notice of Motion filed 21 February 2014 and his Notice of Motion filed 13 March 2014) on the ordinary basis. (7)RESERVE to all parties' liberty to apply (within seven days of the publication of this Judgment) for an order that that costs order be varied or discharged.

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: 16 July 2014