Estate of Guamani; Guamani v De Cruzado - [2023] NSWSC 502 - NSWSC 2023 case summary — Zoe

NSWNSWSC

Estate of Guamani; Guamani v De Cruzado

[2023] NSWSC 502

Supreme Court of NSW|2023-02-17|Before: Meek J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-02-17

Before

Meek J

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

Succession Act 2006 (NSW) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Wills, Probate and Administration Act 1898 (NSW) Cases Cited: Application of Doolan [2023] NSWSC 320 April Fine Paper v Moore Business Systems (2009) 75 NSWLR 619; [2009] NSWSC 867 Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 Ball v Saint [2022] NZHC 3607 Banks v Goodfellow (1870) LR 5 QB 549 Bear v Bear; Jordan v Bear [2022] NSWSC 1687 Blashill v Chambers (1884) 14 QBD 479 Boyce v Bunce [2018] NSWSC 1924 Cassarino v Cassarino [2020] NSWSC 454 Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171 Donoghue v Commissioner of Taxation [2018] FCA 468 Dowling v St Vincent De Paul Society of Victoria Inc [2003] VSC 454 Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 East Grace Corporation v Xing (No 1) [2005] FCA 219 Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786 Estate Rofe [2021] NSWSC 257 Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 Fiduciary Limited v Morningstar Research Pty Ltd [2004] NSWSC 664; (2004) 208 ALR 564 Gertsch v Roberts (1993) 35 NSWLR 631 Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562 Hadid v Sabouh [2023] NSWSC 483 Hyland v Burbidge; The Estate of Charles Keith Hyland (Supreme Court (NSW), Powell J, 23 October 1992, unrep) Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137 In the Estate of Fuld deceased; Hartley v Fuld (Attorney General intervening) [1965] P 405 Karwala v Skrzypczak; In the Estate of Ratajczak [2006] NSWSC 203 Lewis v Lewis [2021] NSWCA 168 Maatschappij Voor Fondsenbezit v Shell Transport and Trading Co [1923] 2 KB 166 Mallitt v Gow [2022] NSWSC 1012 McKeown v Harris & Anor; Re Rice [2018] QSC 87 Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 Micallef v Linney [2020] NSWSC 1457 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Newell and King v Weeks (1814) 2 Phillim 224; 161 ER 1126 Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89 Potts or Riddell v Reid [1943] AC 1 Public Trustee v Gittoes aka Caldar [2005] NSWSC 373 R v Forbes; Ex parte Bevan (1972) 127 CLR 1; [1972] HCA 34 Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443 Rajski v Computer Manufacture & Design Pty Ltd [1983] 2 NSWLR 122 Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd [2022] NSWCA 206 Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040 Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813 Re Estate Pierobon, Deceased [2014] NSWSC 387 Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Re Hubbard; Estate of Ross [2011] NSWSC 617; (2011) 4 ASTLR 497 Re Rosie (No 2) [2022] NSWSC 1750 Re Marriage of Brown (1991) 15 Fam LR 69 Robinson v Jones (No 3) [2015] VSC 508 Rusiti v Alkhoshaibi [2007] NSWSC 1374 Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521 Street v Luna Park Sydney Pty Ltd [2006] NSWSC 1317 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Trust Co of Australia Ltd v Perpetual Trustees WA Ltd (No P2) (1995) 36 NSWLR 654 Uptown Sydney Development Corp Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300 Willey v Synan (1935) 54 CLR 175; [1935] HCA 76 Young v Holloway [1985] P 87 Texts Cited: Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague Judgments Convention) Dal Pont, GE, The Law of Costs (5th ed, 2021, LexisNexis) Geddes, Robert, Charles Roland and Paul Studdert, Wills, Probate Administration Law in New South Wales (1st ed, 1996, LBC Information Services) Handler, Les & Richard Neal, Mason and Handler Succession Law and Practice New South Wales (LexisNexis) Hastings, Roland and George Weir, Probate Law and Practice (1939, 1st ed, The Law Book Co of Australasia Pty Ltd) Hastings, Roland and George Weir, Probate Law and Practice (1948, 2nd ed, The Law Book Co of Australasia Pty Ltd) Herzfeld, Perry and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters) Janes, Stephen, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters) Learmonth, Alexander, Williams, Mortimer & Sunnucks - Executors, Administrators and Probate (21st ed, 2018, Thomson Reuters) Lindsay J, "Parties, Property and Notice of Proceedings in Succession Law Cases" (Paper), College of Law Seminar, 20 February 2019 Lindsay J, "The 'Why' and 'What' of 'Suspicious Circumstances' in Probate Litigation" (Paper), Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018 Macquarie Dictionary, online ed Maestri, Raffael, "Once in a blue moon - the curious case of security for costs in contested probate litigation Pt 1" (2019) 21(1) REP 8 Maestri, Raffael, "Once in a blue moon - the curious case of security for costs in contested probate litigation Pt 2" (2019) 21(2&3) REP 17 Maestri, Raffael, "Once in a blue moon - the curious case of security for costs in contested probate litigation Pt 3" (2019) 21(4) REP 33 Mason, Keith, "The Inherent Jurisdiction of the Court" (1983) 57 Australian Law Journal 449 Meek SC, Michael and Paul Studdert, "Grants in administration of deceased estates" (2016) 43(1&2) Australian Bar Review 115 Ritchie's Uniform Civil Procedure NSW (LexisNexis) Category: Principal judgment Parties: Pastora Guamani (First Plaintiff / First Respondent) Lidia Chicaiza Guamani (Second Plaintiff / Second Respondent) Omar Ernesto Guamani Portilla (Third Plaintiff / Third Respondent) Luz Mariel Baca Flor De Cruzado (First Defendant / Applicant) NSW Trustee & Guardian (Second Defendant) Representation: Counsel: J Brown (11 May 2023) and C Hodgson (17 February 2023) (Plaintiffs / Respondents) A Power (First Defendant / Applicant)

[3]

Introduction

HIS HONOUR: The application before the Court raises an important but relatively rare question of principle regarding the practice of the Court in relation to whether an order for security for costs ought to be made in relation to probate proceedings.
The question of principle is important at least for the reason that probate proceedings have a public interest aspect to them and the prospect that a legitimate testing of the final testamentary wishes of the deceased might potentially be stymied by an interlocutory order for security for costs is a matter which requires some considered thought and examination.
That instances of applications for security for costs in probate proceedings are relatively rare is undoubted. What little probate caselaw and texts which address the issue of security for costs in probate proceedings comment on the paucity of instances of such orders. Indeed, one of the articles written on the issue emphasises the scarce occurrence of such orders by the idiomatic title "Once in a blue moon - the curious case of security for costs in contested probate litigation": Raffael Maestri (2019) 21(1) REP 8; (2019) 21(2 & 3) REP 17; (2019) 21(4) REP 33 (the article being published in the bulletin across three parts).
It is evident that the catalyst for Mr Maestri's article is the decision of Lindsay J in Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813 (Re Condon). Certainly, Lindsay J's decision in Re Condon has served to provoke important and helpful discussion in the profession regarding the rationale for security for costs orders and how general security for costs principles are applied in proceedings having regard to the peculiarities of the nature of probate proceedings.
Current legal texts now refer to the decision of Re Condon: see, for example, GE Dal Pont, The Law of Costs (5th ed, 2021, LexisNexis) (Dal Pont) at [28.4] 1025; Les Handler & Richard Neal, Mason and Handler Succession Law and Practice New South Wales (LexisNexis) at [6089]; Ritchie's Uniform Civil Procedure NSW (LexisNexis) at [42.21.75]; Stephen Janes, David Liebhold and Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2020, Thomson Reuters) (JLS) at [COST.150] 966-967.
Further, there is at least one case, namely, Ball v Saint [2022] NZHC 3607 (Ball v Saint) in which a judge has considered an application for security for costs in probate proceedings and referred to the decision of Re Condon: at [15]-[16] per Robinson J.
Curiously, none of the caselaw or texts particularly identify the reason as to why there is such a paucity of instances in which security for costs is claimed or ordered in probate proceedings: Re Condon at [72].
It might in part be explicable by the fact that there are as observed by Lindsay J considerations and or mechanisms in probate proceedings for achieving objectives associated with security for costs rationales, separate from making an order for security for costs: Re Condon at [93].
For example, an application for security for costs might be unnecessary if the party against whom security might potentially be sought has some entitlement to a share in the deceased's estate irrespective of the outcome, which is able to be set-off against any ultimate costs order.
In any event, it is not necessary to probe the reasons for the paucity of such cases in probate proceedings. That is because principles of statutory construction and a purposive approach to considering security for costs in the probate jurisdiction provide sufficiently sound bases on which the question of whether security for costs ought to be ordered on the facts of this particular case may be determined.
In the result, I have determined to dismiss the applicant's notice of motion for security for costs.

[4]

Family details

Washington Manuel Guamani (the deceased) died in New South Wales on 6 September 2021 aged 76 years.
Relevantly for probate purposes, the deceased left some property in New South Wales including real property located at St Peters (the St Peters property).
The deceased was born in Ecuador in July 1945.
His parents, Juan and Maria both predeceased him.
He had five siblings being relevantly: Adelaida, Rosa, Pastora, Elisa and Juan.
Adelaida and Rosa predeceased the deceased respectively in November 2021 and November 2003.
The deceased had twelve nephews and nieces.
Relevantly, the parties to the proceedings nominally as plaintiffs are the deceased's sister Pastora, his niece Lidia (a daughter of Adelaida) and Omar (a son of Juan) (the respondents).
It appears the deceased emigrated from Ecuador to Australia in about the 1970s, and for some period of time in Australia had an occupation as a bus driver.
There is minor dispute as to precisely when the deceased met the first defendant in the proceedings being the applicant on the application (applicant). The plaintiffs say he met her in or about 2011. The applicant asserts she met the deceased in March 2012, and they commenced a relationship in May 2012.
On or about 2 January 2015, the deceased married the applicant in Peru and remained married to her as at the date of his death. At that stage it appears the deceased was 69 years old, and the applicant was 44 years old. There was some inconsistency in the evidence in the proceedings regarding the applicant's precise name. Ms Power clarified that the applicant's given names are Luz Mariel and her surname is Baca Flor Cruzado: T 10. Nonetheless, it seems the applicant often shortens reference to her surname as simply "Baca" for convenience in Australia: T 10.
There is a question which is not necessary to determine on this application as to whether the marriage between the deceased and the applicant in Peru was recognised in Australia as a valid marriage pursuant to Pt VA Marriage Act 1961 (Cth).
The applicant was previously married and has two biological children (to her ex-husband) being Wendell aged about 29 years and Christopher aged about 21 years (also spelt "Cristopher" in some parts of the evidence).
Wendell and Christopher are thus the deceased's stepchildren.

[5]

Claim for security for costs

By notice of motion filed on 15 December 2022, the applicant seeks security for costs for probate proceedings commenced by the plaintiffs on 16 November 2022 in the Equity Division, Probate List of this Court.
There is a second defendant to the probate proceedings being the NSW Trustee and Guardian (NSWTG).
The NSWTG is the named executor in a Will propounded by the respondents to which I refer below.
The NSWTG has filed a defence to the claim in the proceedings but not otherwise played any relevant part on the claim for security for costs.
The order for security for costs is sought pursuant to r 42.21(1)(a) Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in the amount of $90,000 inclusive of GST or such other amount as the Court sees fit.
The claim so framed is principally on the basis that the respondents are resident in Ecuador.
The notice of motion seeks related orders that in the event that the amount of security sought is ordered: 1. there be a stay of the proceedings pursuant to r 42.21(1)(a) UCPR pending the provision of such security within the period of 28 days; and 2. the proceedings be dismissed pursuant to r 42.21(3) UCPR in the event that such security is not provided within 28 days of the making of any order for security.
The hearing of the application was initially listed before me on 17 February 2023. Ms Power of counsel appeared for the applicant. Mr C Hodgson of counsel then appeared for the respondents.
The applicant relied upon two affidavits being relevantly: 1. the affidavit of Malachi Thomas Dutschke (Mr Dutschke) affirmed 15 December 2022; and 2. the affidavit of James Walter Whiley (Mr Whiley) affirmed 25 January 2023.
The affidavit of Mr Dutschke (who is the applicant's solicitor) addresses how the claimed costs in respect of the application are calculated.
The affidavit of Mr Whiley addresses the preparation of the chronologically last Will of the deceased being a Will executed on 3 September 2021 (the 2021 Will).
The respondents relied upon a number of affidavits of their solicitor Phillip James Briffa (Mr Briffa) affirmed on 12 December 2022, 22 December 2022 and 25 January 2023, the Exhibit PJB-1 to the affidavit of Mr Briffa affirmed 12 December 2022, affidavits of each of the respondents dated 13 December 2022 and an affidavit of Jacqueline Guamani also affirmed 13 December 2022.
Following the noting of evidence, I raised with the parties the fact that the pleadings in the proceedings were incomplete. I considered that the pleadings should be completed prior to the application being determined.
I made directions for the applicant to file and serve any defence and any amended (pleaded) cross-claim and for the respondents to file and serve any defence to any such amended cross-claim. The matter was stood over for directions. The matter was returned to the Succession List.
An issue arose as to whether I had become part heard in the hearing of the matter. On 17 February 2023, apart from noting the evidence relied upon by the parties the matter was not substantively argued before me. Given the completion of the pleadings in the matter might on one view have had a significant impact on the issues in the proceedings, I considered that there was no particular necessity for me to continue to hear the matter.
Nonetheless, as the hearing of the application had not progressed, I directed on 5 May 2023 that the matter be listed before me on 8 May 2023 for mention. After discussion with counsel, I listed the matter for hearing on the basis that the evidence to be relied upon on the application was the evidence noted on the prior occasion with the exception that the Court would note and have regard to the further pleadings that had been filed and served since that time.
Mr Hodgson and Ms Power had previously provided outlines of submissions. Mr Hodgson was no longer available to complete the hearing of the application and Mr Brown appeared for the respondents.
On the hearing of the application, Ms Power tended an additional Will of the deceased that had been found being a Will dated 29 August 1988, prepared by Gadens Solicitors Sydney in which the deceased made provision to give his estate to his then wife Nora. The Will was marked Exhibit A1.
Ms Power tendered a copy of the deceased's death certificate which I refer to below. That was marked Exhibit A2.
Mr Brown tendered a copy of a requisition of the Registrar in Probate to the former solicitors of the applicant being a requisition dated 14 July 2022 which requisition drew to the attention of those former solicitors the fact that a (further) probate caveat had been filed in the matter on 23 May 2022 and was currently (then) in force. That was marked Exhibit R1.
Mr Brown additionally read an affidavit of Amber Geake affirmed 12 December 2022 proving service of notices of proceedings on Wendell and Christopher by email on 12 December 2022 which email service upon them was acknowledged by them. He also read the affidavit of Jacqueline Gin sworn 12 December 2022 being an Affidavit of Attesting Witness of the Will described below as the "2018 Will".
There was no cross-examination on any of the affidavits filed in the matter and counsel had the opportunity of making further oral submissions.

[8]

Issues arising from the pleadings

Following the deceased's death, the applicant published a notice of intended application for probate of the 2021 Will. The respondents filed caveats on 21 November 2021 and 23 May 2022.
Initially, apart from filing a summons seeking a grant of probate in common form (rejected due to the then caveat), the applicant took no steps to progress an application for probate of the 2021 Will.
The respondents, as noted, on 16 November 2022, filed a statement of claim, rather than filing a further probate caveat. Because of this, at least in a formal sense, they became the plaintiffs in the proceedings rather than defendants to the dispute regarding probate.
The respondents propound the 2018 Will and challenge the validity of the 2021 Will on grounds that the deceased lacked testamentary capacity being not of sound mind, memory and understanding and, further, on the basis that the preparation and execution of the 2021 Will was attended by suspicious circumstances and that at the time of execution the deceased did not know and approve of its contents.
The invocation of "suspicious circumstances" per se is not generally regarded as a probate defence as such. Matters raised as being "suspicious circumstances" are usually viewed as being relevant, if at all, to the question of knowledge and approval: e.g. Karwala v Skrzypczak; In the Estate of Ratajczak [2006] NSWSC 203 per Windeyer J at [11] citing Isaacs J in Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 at 528.
Details of the respondents' challenges to the 2021 Will based on alleged lack of testamentary capacity are particularised in paragraph 26 of the statement of claim as follows: Invalidity of the Purported 2021 Will 26. The purported 2021 Will is not a valid testamentary instrument by reason of the fact that, at the time the deceased signed the purported 2021 Will, he was not of sound mind, memory and understanding, and lacked testamentary capacity. Particulars a. The purported 2021 Will was made 3 days before the deceased died. b. At that time, the deceased was hospitalised (at Royal Prince Alfred Hospital) and receiving treatment for respiratory failure and cancer of the lymph nodes, bone marrow and spleen (namely, advanced diffuse large B-cell lymphoma) (which treatment included chemotherapy). c. The deceased had limited life expectancy. d. The deceased was physically frail and heavily medicated. e. The deceased was not eating or talking for a number of months in the lead up to the execution of the purported 2021 Will. f. The deceased demonstrated forgetfulness, confusion and disorientation for a number of months in the lead up to the execution of the purported 2021 Will. g. The purported 2021 Will represents a significant departure from all of the deceased's earlier wills and his longstanding, and expressed, testamentary intentions. h. The purported 2021 Will is inconsistent with: i. The nature and quality of the deceased's relationship with the First Defendant at the time of the execution of the purported 2021 Will; ii. The nature and quality of the deceased's relationship with Wendell and Christopher at the time of the execution of the purported 2021 Will; and iii. The deceased's ongoing commitment, and representations, to his family in Ecuador. i. The deceased was not capable of properly comprehending and appreciating the terms and effect of the purported 2021 Will or the legitimate claims on his estate at the time of the execution of the purported 2021 Will. (Further particulars to be provided after lay evidence and disclosure.)
Details of the respondents' challenges to the 2021 Will based on alleged suspicious circumstances and lack of knowledge and approval are particularised in paragraph 27 of the statement of claim as follows: 27. Further, or in the alternative to paragraph 26 above, the purported 2021 Will is not a valid testamentary instrument by reason of the fact that the preparation and execution of the purported 2021 Will is attended by suspicious circumstances and, at the time the deceased signed the purported 2021 Will, he did not know and approve of its contents. Particulars a. The Plaintiffs repeat the particulars to paragraph 26 above. b. The purported 2021 Will was prepared by a firm of solicitors (Hall & Willcox), which firm was not known to, or used by, the deceased historically. c. The deceased historically retained the NSW Trustee & Guardian in respect of his Will-making and the NSW Trustee & Guardian prepared the six (6) prior known Wills of the deceased between 1989 and 2018. d. Hall & Willcox was retained in or about July 2021 on a pro-bono basis through a referral scheme with the Marrickville Legal Centre. e. The First Defendant initiated contact with the Marrickville Legal Centre in or about June 2021, and engaged in all communications with the Marrickville Legal Centre. f. The First Defendant was present at, and involved in, all meetings with Hall & Willcox vis-a-vis the purported 2021 Will, including the occasion on which the purported 2021 Will was executed. g. In this way, the First Defendant, who receives a substantial benefit under the purported 2021 Will, and shares the deceased's estate thereunder only with her two (2) biological children, Wendell and Christopher, was heavily involved in procuring the purported 2021 Will. h. The purported 2021 Will contains factual errors, including by referring to Wendell and Christopher as the deceased's "children". i. Hall & Willcox were not provided with, and did not discuss with the deceased, any instructions regarding the nature and extent of his estate. j. Hall & Willcox were not provided with, and did not discuss with the deceased, any of the deceased's prior Wills, or the departures therefrom in the purported 2021 Will. k. The attesting witnesses to the purported 2021 Will were not legally trained. I. The deceased had limited English proficiency and usually spoke fluent Spanish. m. The attesting witnesses to the purported 2021 Will did not, to the knowledge of the Plaintiffs, speak Spanish. n. For a number of months in the lead up to the execution of the purported 2021 Will, the First Defendant limited communications between the deceased and the Plaintiffs (and other family members overseas), and managed/directed all communications through her. (Further particulars to be provided after lay evidence and disclosure.)
On 14 March 2023, the applicant filed a defence to the statement of claim relevantly pleading that the 2021 Will was validly executed and disputing that the deceased lacked testamentary capacity for the Will.
Further, on 14 March 2023, the applicant filed a pleaded cross-claim propounding (for the first time) the 2021 Will. The applicant had previously, on 21 November 2022, filed a form of cross-summons in which the applicant sought a family provision order for provision out of the deceased's estate pursuant to Ch 3 Succession Act 2006 (NSW) (Succession Act) premised on the event that the Court might find that the 2021 Will was not a valid Will.
That cross-claim additionally sought an order extending the time for the applicant to make a family provision claim and an order designating (unidentified) property as notional estate.
The reason why the applicant had not prior to the initial listing of the matter before me on 17 February 2023 sought any positive relief propounding the 2021 Will is not evident from the evidence.
The more recently filed pleaded cross-claim apart from propounding the 2021 Will retains the claim for relief for a family provision order (in the event the Court were to find against the 2021 Will).
On 31 March 2023, the respondents filed a defence to the amended pleaded cross-claim. That defence effectively picks up the challenges to the 2021 Will that had been made in the statement of claim.

[10]

Mr Whiley's affidavit

It is common practice in probate proceedings for a direction to be made by the Court for a solicitor who has attended upon the deceased to make a Will to outline in an affidavit the solicitor's involvement leading to the making and execution of the Will.
It is clear from Mr Whiley's affidavit that the deceased was a pro bono client of Mr Whiley's firm. He had been introduced to the firm by a referral from Marrickville Legal Centre.
Without attending to be exhaustive, I note that Whiley's evidence reveals the following details.
Mr Whiley before formally meeting the deceased relied upon a colleague (Ms Bladen) to contact the applicant to establish whether the deceased had capacity to provide instructions and sign documents, and Mr Whiley understood from Ms Bladen's response (following a call with the applicant) that the deceased would have such capacity.
Due to COVID-19 restrictions Mr Whiley did not physically meet with the deceased but had a virtual ZOOM meeting with both the deceased and the applicant on 21 July 2021.
Mr Whiley also arranged for a colleague, Ms Gabriela Manzano (Ms Manzano) (said to be a native Spanish speaker), to attend the meeting to help translate if required.
Mr Whiley noticed that the deceased was an older man and appeared visibly unwell.
Mr Whiley indicates that he received instructions from the deceased in that meeting and outlines a brief discussion with the deceased.
On or about 2 August 2021, Mr Whiley arranged for Ms Bladen to prepare a draft Will. On 3 August 2021, he reviewed that draft and what he describes as other succession planning documents to be sent to the deceased.
On 4 August 2021, Mr Whiley was copied into an email sent by Ms Manzano to the deceased and the applicant attaching a number of documents including draft Wills for them.
On 24 August 2021, Mr Whiley discussed with Ms Manzano an email she had received from the applicant.
On 29 August 2021, Mr Whiley discussed with Ms Manzano an email she had received from the applicant regarding a deterioration in the deceased's health and he asked her to finalise the draft 2021 Will.
On 30 August 2021, Ms Manzano sent to the applicant an email with a number of documents including the draft version of Wills for both her and the deceased. A form of "default clause" had apparently been removed from the draft.
The email states in part: In relation to your query whether a lawyer can attend the hospital to witness Washington's documents, I am afraid we are not able to do this given lockdown and the risks to our staff in attending hospital, as we have nobody who is fully vaccinated in our team. If the hospital is also not allowing visitors, they are unlikely to allow a lawyer to visit.
On 1 September 2021, Mr Whiley indicates that he was advised by Ms Manzano that a physical copy of the final version of the 2021 Will had been sent to the deceased's hospital as requested by the applicant.
On the same day, Mr Whiley had a telephone call with the person he describes as the deceased's doctor at the hospital, Dr Edward Abadir (Dr Abadir).
The conversation is in the following terms: Me: "I understand you tried calling to let us know that you don't think Mr Guamani has capacity to sign his Will?" Dr Abadir: "Yes, but it's complicated. Mr Guamani will go in and out of capacity based on the treatment we give him. If he regains capacity, we will try to have him sign the Will" Me: "Ok, thank you. Please let us know either directly or through Luz if that is the case, and Mr Guamani has the capacity to sign his Will."
On 2 September 2021, Mr Whiley states that he discussed with Ms Manzano a call that she had with the applicant who apparently confirmed both Dr Thomas Buss and Dr Abadir had formed the view that the deceased had capacity to sign the 2021 Will. An email sent by Ms Manzano to Mr Whiley on that day refers to a telephone call she had with the applicant lasting apparently for some nine minutes. The email simply states: "Luz said that the social worker from the Hospital will arrange 2 witnesses tomorrow at 11 am, two doctors have told Luz that Washington has capacity to sign his Will. Luz has the attached letter and Will printed already."
On 3 September 2021, Mr Whiley attended a virtual meeting via ZOOM (due to the then COVID-19 restrictions) with the deceased, the applicant and persons who he describes as "two independent witnesses" being Ms Sandra Mitchell (Ms Mitchell) and Ms Tania Sheldrick (Ms Sheldrick) who were present with the deceased.
Mr Whiley states that he asked whether one of the deceased's doctors was also present to act as a witness and provide confirmation that he had "legal capacity". He was advised that they were not available but that the deceased's capacity "had been confirmed again with the doctors before the meeting".
Mr Whiley then states that he carefully took the deceased through the clauses of the Will to ensure that he understood them and they reflected his instructions, and that he was mindful of ascertaining that the deceased fully understood the nature and effect of the Will due to any language barriers. He sets out a version of a conversation that he had with the deceased which he described as being "with the assistance of the first defendant to provide translation as required".
Finally, Mr Whiley states that he observed the deceased sign the 2021 Will in the presence of Ms Mitchell and Ms Sheldrick who also signed as witnesses.
His affidavit then attaches an email that he sent to Ms Manzano which Mr Whiley describes as effectively being a form of file note.
The email is in the following terms: JW explaining docs to Washington after checking that he had legal capacity with doctor. Washington confirming that he was happy with and understood docs then executing: 1. Will and 2 independent witnesses executing - Luz will retain original. 2. POA and AEG with JW as witness via Zoom noting Washington had already signed them so he resigned them in front of JW with blue pen noting JW advised it would be better to sign new docs, but they did not have copies, so better than nothing. Luz also signing in front of JW noting she signed where JW was meant to sign by accident on POA so will cross out. Agreeing to send originals to JW home address and JW providing for him to witness and return to their home address. 3. Luz will arrange a time to execute her docs another time.

[11]

Lidia's affidavit

Lidia's affidavit indicates that she only ever spoke with the deceased in Spanish.
She sets out details of her lengthy relationship with the deceased. She indicates that after the deceased and the applicant married in Peru, the deceased indicated to her that the applicant wished to live in Lima, but he did not wish to live there and wanted to live in Quito, and he proposed to stay in Quito and visit the applicant in Lima.
She indicates that in 2018, the deceased spoke with her, and she asserts he told her that there was no stability in their relationship, and he would have liked to have lived in Quito but instead the applicant was preparing paperwork to go to Australia. She notes that the deceased then moved to Australia with the applicant and her two sons in 2018.
The affidavit addresses details of the deceased's relationship with Christopher and his plans to return to Ecuador (where Lidia lives).
The affidavit, in particular, sets out details of Lidia's correspondence principally with the applicant from 15 May 2021 via text and voice messages on WhatsApp.
Lidia indicates that in or about July 2021, she spoke with the deceased on WhatsApp, and they had a conversation in which she told him that she had asked the applicant to help her get a visa so that she could come to Australia to visit and spend some time with the deceased and that the applicant had told her that the deceased did not want her to come. Lidia questioned this and she says the deceased responded to the effect of (English translation): "Why wouldn't I want you to come? I didn't even know you asked".
Lidia indicates that after that time when she asked the applicant about the deceased's health she did not answer, and she relied upon her cousins Jacqueline and Miriam to keep her updated regarding the deceased's health. She finally refers to a text message which the applicant sent to her on 5 September 2021 through WhatsApp, noting that the deceased was still in hospital and that "He is delicate. The doctors are helping him by providing the oxygen he needs. In general, they tell me he is somewhat stable". She says that is the last message she received from the applicant.

[18]

Purposive approach to construing provisions for security

The specific power under r 42.21 relied upon in the application is in terms that if it appears to the Court on the application of a defendant that a plaintiff is ordinarily resident outside Australia, the Court may order the plaintiff to give such security as the Court thinks, in such manner as the Court directs, for the defendant's costs of the proceedings, and the proceedings may be stayed until the security is given.
There are accepted principles regarding statutory construction of such provisions. I addressed and adhere to what I stated regarding the principles relevant to approaching the task of statutory construction in Application of Doolan [2023] NSWSC 320 at [335]-[342].
Part of those accepted principles involves having regard to what statutory provisions direct or provide as to how other statutory provisions should be construed.
A rule of Court is a type of statutory rule for the purposes of the Interpretation Act 1987 (NSW) (Interpretation Act) s 21(1).
In construing a rule of Court such as r 42.21, it is necessary to have regard to the purpose or object underlying the provision so as to adopt a construction which would promote that purpose or object rather than a construction which would not: Interpretation Act ss 21(1), 33.
In addition, the Court must seek to give effect to and best advance the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in any proceedings when it interprets and exercises any power given to it by the UCPR: ss 56(1), (2), 57(2) Civil Procedure Act 2005 (NSW) (CPA).
To further the overriding purpose, Court proceedings are to be managed having regard to specified objects being the just determination and timely disposal of the proceedings, the efficient disposal of the business of the Court and the efficient use of available judicial and administrative resources: s 57 CPA.
The Court, in deciding whether to make any order for the management of the proceedings, must seek to act in accordance with the dictates of justice: s 58(1)(a) CPA.
For the purpose of determining what are the dictates of justice in a particular case, the Court must have regard to the provisions of ss 56 and 57 CPA: s 58(2)(a) CPA.
Further, the Court may have regard to various other specified matters including the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction: s 58(2)(b) CPA.
It cannot be seriously doubted that a potential order directing a party to take a step to make provision for security for costs is one of the types of orders that may be described as an order for the determination of the real issues in the proceedings including the conduct of the proceedings: s 61(2)(a) CPA, rr 2.1, 2.3 UCPR.
The specific matter which enlivens the power of the Court to order security which is relied upon by the applicant in these proceedings is a finding that the respondents are relevantly plaintiffs and ordinarily resident outside Australia: r 42.21(1)(a) UCPR.
If that finding is made, in determining whether it is appropriate to make such an order for security for costs the Court may have regard to 14 enumerated matters and such other matters as it considers relevant: r 42.21(1A) UCPR.
Such statutory provisions where a Court is permitted to make a decision in relation to a matter and further permitted to have regard to certain criteria are relatively common.
As a matter of construction, it may be noted that r 42.21(1A) does not: 1. require that all or any of such matters must be taken into account; 2. prioritise the list of matters that may be taken into account; 3. specify any particular weight to be given to any such matter; nor 4. direct or mandate that any of the matters listed will necessarily be of decisive significance in determining the application for security: see the comments of Hallen J in relation to the analysis of statutory provisions of a similar structure in the context of family provision proceedings in Mallitt v Gow [2022] NSWSC 1012 (Mallitt v Gow) at [222]-[224].
The fourteen matters in r 42.21(1A) are not necessarily discrete and self-evidently there may in any given case be a degree of crossover of factual material between those matters in the Court's consideration of a security for costs application.
Ultimately, it will be a matter for the Court in any given case to determine the weight to be accorded to those considerations, which will necessarily depend upon the facts of the particular case in question: see e.g. Hadid v Sabouh [2023] NSWSC 483 at [94] citing (in the realm of administrative law) Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 41 per Mason J (as his Honour then was), and (in family provision proceedings comments made on the operation of s 60(2) Succession Act and the scheme of that legislation) Mallitt v Gow at [222]-[224] per Hallen J.
It can readily be seen that whilst the fact that a plaintiff resides outside the jurisdiction is technically sufficient to enliven the jurisdiction to order security, the relevant considerations that might bear upon whether any such order is made are potentially numerous and not limited to those matters referred to in r 42.21(1A) UCPR.
Of some significance is the fact that if a plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity: r 42.21(2) UCPR.

[19]

The purposive nature of the probate jurisdiction

Application of the Court's overriding purpose and objects in civil proceedings is to be understood having regard to the nature of the Court's jurisdiction in the proceedings, whether that be inherent, statutory or pursuant to the general law: Re Rosie (No 2) [2022] NSWSC 1750 (Re Rosie (No 2)) at [144].
Thus, when it comes to understanding how a particular procedural rule (in this case a rule addressing security for costs) is to be construed, exercised and applied, a significant consideration is the juristic nature of the proceedings in which the Court is asked to make the order. That includes an understanding of the rules of substantive law that are applicable to that jurisdiction. Examples of this include how the Court approaches questions of joinder of parties in its parens patriae jurisdiction (Re Rosie (No 2) at [128]-[258]) and security for costs in family provision proceedings: Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521.
The purposive nature of the probate jurisdiction has been described in various cases and extrajudicial writings.
The former registrar in probate, Paul Studdert and I address this in part in an article: see Michael Meek SC and Paul Studdert, "Grants in administration of deceased estates" (2016) 43(1&2) Australian Bar Review 115. We stated (omitting footnotes) at 115-116: The central ideal which underlies the court's probate jurisdiction is the notion of an autonomous individual, with property (an estate) to dispose of, living and dying in community, and the appropriate and efficacious transmission of such property. Grants of probate or administration reflect this in a number of ways. It suffices to mention three such ways. First, the seminal test for testamentary capacity which is fundamental to a grant of probate of a will being issued is essentially linked to an individual testator's capacity to understand: what property that individual has; the means by which such property is disposed of on death (a will); the claims that persons in close relationship with the testator (whom the community might expect) to have on his bounty, and the ability of that individual to appropriately discriminate between such claims. Second, the notion of the property of an individual who dies intestate (without a will) being disposed of in community underpins the statutory regime for those who are to inherit on intestacy. The intestacy provisions in this respect create a hierarchy of persons, family relations, who form the deceased's community. Ultimately, if there are no such persons the deceased's estate is distributed to the Crown (bona vacantia) - reflective that the community or society as a whole might benefit from the deceased's property. Third, the processes for a party to apply for probate and for the Supreme Court to make a determination about a type of grant of probate or grant of administration all come back to the notion of a individual with property dying in community and the appropriate and efficacious transmission of such property. Thus, the court in issuing a grant of probate or administration must be satisfied of the fact of (a) death, (b) property being left within the jurisdiction and (c) appropriate notification to persons who are specified either by the testator (beneficiaries) or otherwise as expected by legislation (such as the intestacy provisions) or the court to have a material interest in the court's determination of the orderly collection, winding up and eventual dispersal of the deceased estate. A grant of probate or administration in that respect serves the purpose of being an appropriate authority from the court confirming or conferring title to deal with the deceased's property, allowing the executor or administrator to get in the deceased's property, deal in an orderly way with claims of creditors or other persons upon the property and finally distribute the property to those found to be entitled - usually pursuant to the will, on intestacy or by force of a family provision order. What then is a grant of probate or administration? It is an order in the form of a grant made by the Supreme Court that gives the executor or administrator authority to represent the estate, to collect the assets of the estate, pay all proper debts, funeral and testamentary expenses and distribute the estate to those who are beneficiaries. The grant of probate or administration also provides someone who is accountable for the administration of the estate.
In Re Condon, Lindsay J referred to the nature of probate proceedings in the following terms (at [88]-[90]): 88. The purpose of probate proceedings is generally to advance the due and proper administration of a particular deceased estate, having regard to any duly expressed testamentary intentions of the deceased, and the respective interests of parties beneficially entitled to the estate; the task of the Court is generally to carry out a testator's testamentary intentions, and to see that beneficiaries get what is due to them: In the goods of William Loveday [1900] P 154 at 156; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192; Hookway v Hookway [2017] TASFC 4 at [9] and [69]. 89. In the paradigm case (a model to which the current proceedings conform despite the plaintiff's alternative case based upon an allegation of a declaration of trust), an essential feature of probate proceedings is that they concern the management of property in a court-supervised process designed to effect an orderly transfer of property from a deceased person (whose formally expressed intentions, if any, are paramount) to one or more beneficiaries in circumstances in which: (a) the deceased person is, by definition, absent; and (b) one or more beneficiaries may also be absent or under a legal disability. 90. Because the subject matter of the proceedings is succession to property from a deceased estate, a special public interest element attends the proceedings. By nature, property rights generally, notionally operate "against the whole world", not merely as between a transferor and transferee. Where, as in a probate case, the transferor is incapacitated by death and interested persons are dependent upon findings of the Court in identification and enforcement of his or her intentions, the public has a particular interest (beyond the interests of parties in ordinary adversarial proceedings) in the integrity of the Court's processes.
Understanding the purposive nature of the probate jurisdiction is enhanced by contrasting it with other cognate jurisdictions of the Supreme Court such as the protective jurisdiction (dealing with property and care of those who cannot care for themselves) and the family provision jurisdiction (dealing with a statutory jurisdiction to make provision out of the estate of a deceased person).
Lindsay J, writing extrajudicially in "Parties, Property and Notice of Proceedings in Succession Law Cases" (Paper), College of Law Seminar, 20 February 2019, has helpfully summarised the purposive natures of the protective jurisdiction and the family provision jurisdiction in the following terms: 26. The protective jurisdiction exists for the purpose of taking care of those who cannot take care of themselves: Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258-259. The Court focuses, almost single-mindedly, upon the welfare and interests of a person incapable of managing his or her own affairs, testing everything against whether what is to be done or not done is or is not in the interests, and for the benefit, of the person in need of protection, taking a broad view of what may benefit that person, but generally subordinating all other interests to his or hers. … 28 The family provision jurisdiction, as an adjunct to the probate jurisdiction, looks to the due and proper administration of a particular deceased estate, endeavouring, without undue cost or delay, to order that provision be made for eligible applicants (for relief out of a deceased estate or notional estate) in whose favour an order for provision "ought" to be made.

[20]

Characteristics of the probate jurisdiction

There are particular characteristics of the probate jurisdiction which differ in varying degrees from other jurisdictions which the Court exercises. The following substantive and procedural aspects of the probate jurisdiction suffice to demonstrate particular ways in which the jurisdiction differs from other civil jurisdictions: 1. In probate proceedings, 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 (Re Dowling) at [23] per Young AJ (as his Honour then was). 2. Probate litigation is "interest litigation" in the sense that one must have an identifiable interest in the outcome of the proceedings in order to be a party to them: Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 (Brooker-Pain) at [60(b)] per Lindsay J citing inter alia Gertsch v Roberts (1993) 35 NSWLR 631 at 634B-C per Powell J (as his Honour then was). 3. A person will have a sufficient interest in probate proceedings if he or she has a right "which will be affected by the grant": Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 (Nobarani v Mariconte) at [49] per Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ citing In re Devoy; Fitzgerald v Fitzgerald [1943] St R Qd 137 at 145 per Philp J (Webb CJ and Mansfield J agreeing). For example, a share of personal property and jewellery or other rights of low monetary value suffice to constitute an interest: Nobarani v Mariconte at [49]. 4. Probate proceedings involve a broader understanding of the concept of "parties" than applies in much other civil proceedings. Specifically, contested probate proceedings normally result in an order in solemn form which operates in rem binding the whole world. A person interested in the outcome of probate proceedings may be bound by the outcome even though they are not a party to the proceedings, if he or she is conusant of or has notice of the proceedings and a right or reasonable opportunity to intervene: Brooker-Pain at [60(d)]; Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89 at 158-159 per Kitto J (Menzies and Windeyer JJ agreeing); Re Dowling at [24] citing Newell and King v Weeks (1814) 2 Phillim 224; 161 ER 1126; Young v Holloway [1985] P 87; McKeown v Harris & Anor; Re Rice [2018] QSC 87 at [13] per Crow J. 5. Probate pleadings are generally action-based, "issue pleadings" as distinct from the type of narrative pleadings of material facts in civil litigation: Brooker-Pain at [60(j)]. Thus, probate pleadings typically identify grounds for impugning a Will such as "lack of testamentary capacity" and "lack of knowledge and approval" and detail of such allegations is recorded in particulars of the relevant grounds. 6. In probate, there is no operation for default judgment: Re Dowling at [25]. 7. In probate, a plaintiff is not generally entitled to relief against a defendant merely because the defendant has filed a submitting appearance: e.g. Trust Co of Australia Ltd v Perpetual Trustees WA Ltd (No P2) (1995) 36 NSWLR 654 at 660C-E per Young J (as his Honour then was). 8. In probate, where the Court is asked to pass over a Will there must be appropriate evidence to do so and relevant to the Court's consideration as to whether it will do so or not is whether the parties who have proposed the resolution are the only interested parties or whether the Court considers that notice should be given to other interested parties or other interested parties should be given an opportunity to be heard: Cassarino v Cassarino [2020] NSWSC 454 at [16], [21] per Hallen J. 9. In probate, public interest considerations modify the ordinary rules of privilege such that no form of privilege necessarily attaches to evidence about the circumstances in which a Will has been executed: Brooker-Pain at [60(f)] citing In the Estate of Fuld deceased; Hartley v Fuld (Attorney General intervening) [1965] P 405 at 409-411 per Scarman J (as his Lordship then was); Re Estate Pierobon, Deceased [2014] NSWSC 387; Boyce v Bunce [2018] NSWSC 1924 at [145] ff. 10. In probate proceedings, the outcome of a grant of probate or letters of administration is not merely an order of the Court but also an instrument of title to property: Brooker-Pain [60(a)]; Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [228]-[233] and [275]-[283]. 11. Because a grant of probate or administration is a public act, the Court will not make an order for a grant based simply on the consent of the parties: e.g. Bear v Bear; Jordan v Bear [2022] NSWSC 1687 at [111]; 12. In probate, consent orders are only made after a judge has received evidence tending to satisfy him or her that such an in rem decision should be made: Re Dowling at [25]. 13. New South Wales is a "grant-title" jurisdiction and thus competing claimants for probate who are putative executors are not relevantly trustees for the purposes of seeking judicial advice from the Court pursuant to ss 5, 63 Trustee Act 1925 (NSW) (Trustee Act): Re Hubbard; Estate of Ross [2011] NSWSC 617; (2011) 4 ASTLR 497 at [4] per Windeyer AJ (as his Honour then was). 14. Even in the case of an executor who has obtained a grant of probate, the statutory power of an executor to compromise proceedings does not generally extend to allow a compromise of probate proceedings which determine the title of the executor: s 49(1)(d) Trustee Act; see e.g. Dowling v St Vincent De Paul Society of Victoria Inc [2003] VSC 454 at [21] per Nettle J; Robinson v Jones (No 3) [2015] VSC 508.

[21]

The characterisation of a plaintiff in probate proceedings

The characterisation of a party as a plaintiff in probate proceedings is addressed as a matter of substance. In particular, when dealing with applications for security for costs, the Court is concerned, not so much with a party's place on the record as with the true substance of the claim, the subject of the litigation and the parties' relationship to that claim: Hyland v Burbidge; The Estate of Charles Keith Hyland (Supreme Court (NSW), Powell J, 23 October 1992, unrep) (Hyland v Burbidge) at 29 citing Willey v Synan (1935) 54 CLR 175; [1935] HCA 76 (Willey v Synan) at 184-185 per Dixon J (as his Honour then was), with whom Rich J agreed; Re Condon at [72].
There are numerous cases which address the question of characterisation of a party as a plaintiff in proceedings. The decision of the High Court in Willey v Synan, cited by the parties, illustrates the approach taken by Courts.
In Willey v Synan, the plaintiff was a member of a crew of a ship travelling from New Zealand to Melbourne. The plaintiff claimed that he found onboard the ship English silver coins of a significant value. On arrival of the ship at Melbourne, customs department officials took possession of the coins. The plaintiff made a claim for the coins and the Collector of Customs for the State of Victoria pursuant to the provisions of the Customs Act sent a notice to the plaintiff requiring the plaintiff to take action against the Collector of Customs for recovery of the coins within a certain period of time failing which the coins would be "deemed to be condemned without any further proceedings". It was in the above context that the plaintiff commenced an action in the High Court against the Collector of Customs claiming the return to him of the coins and damages for unlawful detention. At first instance, Starke J made an order for security for costs. The plaintiff appealed that order. The Court hearing the appeal (Latham CJ and Rich, Dixon and McTiernan JJ) allowed the appeal.
Dixon J stated at 184 as follows: The principle is that a party to judicial proceedings, who resides beyond the jurisdiction, should not be required to give security for costs unless, however the parties are arranged upon the record, he is the person invoking or resorting to the jurisdiction for the purpose of establishing rights or obtaining relief. If he does avail himself of the remedies the jurisdiction provides in order to obtain affirmative relief or redress, he may be ordered to give security, although he becomes a defendant in the action.
His Honour further cited the decision of Scrutton LJ in Maatschappij Voor Fondsenbezit v Shell Transport and Trading Co [1923] 2 KB 166 (Maatschappij) to the effect that the (relevant) security is not ordered where the person against whom security is sought is really defending himself against attack, even if he be nominally a plaintiff, but is really defending himself (in Maatschappij, the plaintiff was defending himself against the defendants' previous action against him): 184-185.
Dixon J observed that the application of the principle to the facts of Willey v Synan was difficult because of the way the proceedings emerged but, nonetheless, considered that the solution to the difficulty lay in a consideration of the effect produced by the provisions of the Customs Act. His Honour, having analysed those provisions, determined that the Collector of Customs was the "actor" in the proceedings by reason of the fact that the notice issued by the Collector of Customs was a type of statutory substitute for judicial proceedings by the Crown against the goods (the coins). Its effect was to cast the onus of taking proceedings upon the owner or supposed owner: 185-186. His Honour observed that the statutory provisions in effect enabled the officers of the Crown to take the preliminary step of sending simple notices out-of-Court such that it was for the claimant to either abandon the claim or issue a process to protect his supposed ownership. His Honour considered that, in substance, the claimant was not the "attacker, actor or person seeking redress": at 186.
Rich J agreed with the judgment of Dixon J: at 181. Latham CJ considered that the Collector of Customs had really initiated the legal process by giving the notice: at 180. McTiernan J likewise considered that the action of the appellant was in response to a notice served on him and was "truly instituted by way of defence" to the claim by the Collector of Customs for the condemnation of the appellant's goods: at 187.

[22]

Distinctive features regarding the role of parties in probate proceedings

It has been observed that proceedings for admission of a Will to probate traditionally involve a unique combination of principles relating to the legal onus of proof and shifting evidentiary onus arising from the "presumptions" of fact associated with procedural steps customarily taken in the process of execution of a formal Will: Brooker-Pain at [63].
The particular operation of probate proceedings has been remarked upon in many cases. In the early 20th century, Sir Isaac Isaacs delivered two judgments which stand to this day as valuable practical advice to the legal profession on aspects of probate litigation.
In December 1922, in the seminal decision of Fell v Fell (1922) 31 CLR 268; [1922] HCA 55 (Fell v Fell) at 273-276, his Honour summarised as a guide to construction ten principles said to be incontestable. Those principles have been variously cited and applied in many decisions.
Relevantly, approximately eighteen months later in June 1924, in the decision Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 (Bailey v Bailey) at 570-572, his Honour (with whom Gavan Duffy and Rich JJ agreed) prepared a collection of twelve working principles in respect of legal and evidential burdens of proof, evidentiary presumptions and judicial fact-finding in probate proceedings drawn from cases of the highest authority. Those principles are as follows (omitting footnotes): (1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument. (2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence. (3) The proponent's duty is, in the first place, discharged by establishing a prima facie case. (4) A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator. (5) A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments. (6) The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances. (7) As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries; (b) the exclusion of persons naturally having a claim upon the testator; (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit. (8) Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof. (9) To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property. (10) The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue. (11) While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions. (12) Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date.
Like Fell v Fell, Bailey v Bailey has been cited in many decisions of this Court and more broadly throughout Australia. Bailey v Bailey involved a case of a challenge to testamentary capacity.
In this century, the Court of Appeal has also explained the principles on which the parties' roles in probate proceedings are played out having regard to legal and evidential burdens in particular in cases involving knowledge and approval and what are described as suspicious circumstances: see Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [44]-[53] per Meagher JA, Basten JA (as his Honour then was) at [1] and Campbell JA at [19] agreeing. It may be noted that Meagher JA's decision also addresses principles associated with claims of undue influence or fraud (neither of which are alleged here).
Two further significant practical matters bear mention.
First, in probate proceedings involving issues of testamentary capacity and knowledge and approval, as a matter of practice the moving party on the hearing is often the party assessed as having the burden of the real issue in the proceedings. Thus, if there are several Wills which are contenders for being the final Will and within the proceedings the chronologically last document is disputed, but there is no dispute as to the validity of an earlier testamentary instrument, the Court, as a matter of procedure and practice, will call almost invariably upon the party with the burden of proof of the last contested Will as being the effective applicant or moving party in the proceedings, irrespective of whether that party is nominally a cross-claimant and the party that was propounding the earlier uncontested Will is nominally a plaintiff.
Secondly, the underlying object and purpose of probate litigation inform at least in one sense how the Court views the role of the parties where there is a contest over which Will was the last Will of a testator. Thus, an interested party who, on rational and reasonable grounds, appears to oppose a grant is viewed as assisting the Court by acting as a contradictor in the important task of the Court's determination of what is the last true testamentary instrument of a free and capable testator: Micallef v Linney [2020] NSWSC 1457 (Micallef v Linney) at [6] per Emmett AJA. His Honour there stated (footnote omitted): 6. The ordinary rule that costs follow the event is not necessarily applicable in a probate suit, which involves the exercise of a jurisdiction derived from the ecclesiastical courts of England. In the exercise of its probate jurisdiction, the Court is not simply resolving claims between the parties to the proceedings. Rather, a grant of probate has effect as against the whole world and not simply as the resolution of a dispute between parties. Thus, the grant affects title to property that is binding not only on the parties to a suit but also on non-parties. Accordingly, the Court must be satisfied that an instrument propounded as a testamentary instrument of a free and capable testator is in fact just that. In a sense, a person who, on rational and reasonable grounds, appears to oppose a grant thereby assists the Court by acting as a contradictor.
The role of a contradictor in Court proceedings varies according to purposes. A classic example is the role sometimes played by the Attorney-General in charitable trust proceedings.
In some proceedings, particularly in estate administration, the Court will appoint a party to act as contradictor to assist the Court and the appointment of such a contradictor may be on terms that the reasonable costs of the person appointed are to be paid out of the estate irrespective of the outcome.
In probate proceedings, it is certainly not the case that an opposing interested party has any entitlement to costs in the proceedings. Nonetheless, as observed above, the opposing interested party does act in a type of contradictor role to assist the Court in the proper public purpose of establishing the veracity of the document which becomes an instrument of title used in the public realm and binding on the world. The role so played by such party as a type of contradictor is clearly relevant to the Court's determination as to the appropriate order for costs: Micallef v Linney at [6], [11], [19]-[20].
I explore the role of costs in probate proceedings a little further below.

[23]

Application of security for costs principles is fact and jurisdiction specific

In some legal literature, there are statements which at first glance suggest that Court rules regarding security for costs do not operate in probate proceedings in a manner explicitly different from their operation in other proceedings of the Court: e.g. Alexander Learmonth, Williams, Mortimer & Sunnucks - Executors, Administrators and Probate (21st ed, 2018, Thomson Reuters) at [33-18] 539.
At first blush, propositions like that appear to grate against an understanding that the particular jurisdiction that the Court is exercising is relevant to how security for costs principles are applied.
However, statements suggestive that Court rules regarding security for costs do not operate in probate proceedings in a manner explicitly different from their operation in other proceedings must yield to the proposition that application of the Court's overriding purpose and objects in civil proceedings is to be understood having regard to the nature of the Court's jurisdiction that is being exercised in any given case.
Thus, as Lindsay J has explained, whilst the same security for costs principles may pertain to all proceedings, their application depends upon the facts of the particular case including the peculiarities of the nature of the proceedings before the Court in which they are being applied - being, relevantly, here the nature and characteristics of probate litigation: Re Condon at [74]; see also Ball v Saint at [16] per Robinson J.
The effect of any potential order for security for costs in probate proceedings on the administration of a deceased's estate is a consideration in the Court's determination as to whether to make or to decline an order for security for costs: Re Condon at [102]-[103].
It has been suggested that consideration of whether the Court will order security for costs includes whether the order for security would have the effect of frustrating due administration of the estate: see JLS at 967. As a matter of general principle, I consider that to be a correct proposition. However, I note that the citation for the proposition is Lindsay J's comments in Re Condon at [102]. I simply note that Lindsay J's comments in Re Condon at [102] did not limit the relevance of aspects of due administration of an estate to situations where the administration may be frustrated.
In particular, the example that his Honour gave of the relevance of the effect of an order for security for costs on the administration of the estate related to a posited scenario in which the respondent is ordinarily resident outside Australia but resides in a jurisdiction which has reciprocal enforcement protocols with Australia. In that case, his Honour observed that what is necessary for the due administration of the estate may be a factor in deciding whether the quantum of security should be limited to the costs of enforcing an order of the Court in the foreign jurisdiction: at [103].

[24]

Costs in probate proceedings

Probate proceedings may be aptly described as a type of civil litigation. Ordinarily, in civil litigation in the Supreme Court, subject to the rules of Court, the CPA and any other Act, costs are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent costs are to be paid and whether they are awarded on the ordinary basis or an indemnity basis: s 98 CPA.
The rules of Court provide that if the Court makes any order as to costs, the Court is to order that the costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: r 42.1 UCPR.
However, it is also well established that because of the particular nature of the probate jurisdiction, when the Court comes to make a decision as to awarding costs in probate litigation, the nature of the jurisdiction has particular characteristics which differ from ordinary civil litigation and are relevant to the consideration of the Court as to whether "some other order" should be made: e.g. Gray v Hart; Estate of Harris (No 2) [2012] NSWSC 1562 (Gray v Hart) at [4] per White J (as his Honour then was).
As was observed by Lindsay J in Re Condon at [90], the reason for the differing approaches to principles regarding the awarding of costs was explained by White J (as his Honour then was) in Gray v Hart in the following terms: 5. The reason for the difference is that in a probate suit the court is concerned to give effect to the last will of a free and capable testator or testatrix. There is a public interest in keeping faith with the wishes of a capable will-maker that requires an investigation into the validity of the propounded wills. A grant of probate in solemn form operates in rem, that is, it binds the world, or at least those affected persons who have notice of the proceedings. Irrespective of what the parties might want, the court will not pronounce against a will unless there is material to satisfy it that the deceased did not have capacity, or that there is some other reason why the will is invalid. A grant is not made or withheld solely by the consent of the parties. There is, therefore, a public interest in the incurring of some level of costs in cases where there is genuine doubt about the validity of a will.
There is much caselaw and commentary which focusses upon two particular so-called "exceptions" to the general stipulation in r 42.1 UCPR that costs follow the event. The commentary often identifies these exceptions by reference to the decision of Powell J in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 (Shorter v Hodges) at 709E-G namely that: 1. where the cause or responsibility for the litigation can fairly be laid at the feet of the testator the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate (cause exception); and 2. if the circumstances in which the testamentary instrument was created are such as to reasonably invite an investigation by the Court, the costs of that exercise may be left to be borne by those who respectively incur them (investigation exception).
However, as noted by Lindsay J in Re Condon, when one has regard to older practice texts and caselaw, broader guides and greater flexibility regarding the costs jurisdiction are evident than sometimes suggested by reference to the above two Shorter v Hodges "cause exception" and "investigation exception".
For many years in this State the seminal probate practice text was "Hastings & Weir": Roland Hastings and George Weir, Probate Law and Practice (1939, 1st ed, The Law Book Co of Australasia Pty Ltd); Roland Hastings and George Weir, Probate Law and Practice (1948, 2nd ed, The Law Book Co of Australasia Pty Ltd).
The first edition of JLS was published in 1996 and authored by Robert Geddes, Charles Roland and Paul Studdert being then the modern successor to Hastings & Weir: Robert Geddes, Charles Roland and Paul Studdert, Wills, Probate Administration Law in New South Wales (1st ed, 1996, LBC Information Services).
In the second edition of Hastings & Weir (1948), there is commentary on costs by reference to the provisions of s 153 Wills, Probate and Administration Act 1898 (NSW) (WPA Act) which provided that in all matters under Part II of the WPA Act, the question of costs and how they shall be paid was directed to be in the discretion of the Court subject to any appeal: Hastings & Weir at 335.
Relevantly, the commentary regarding costs of unsuccessful parties in probate litigation at 336-338, whilst mentioning (albeit in slightly different wording) the above exceptions, also indicates that the costs of an unsuccessful party may be addressed in the following terms which by reference to particular types of issues that may arise demonstrate greater flexibility in cost outcomes in probate litigation than merely the "cause exception" and the "investigation exception": Costs of Unsuccessful Party. (i) Where the conduct of the testator, or his carelessness or the conduct of the residuary beneficiaries, has led to an action to propound or contest the will, or where the action of the party propounding the will was reasonable, the party so propounding or contesting may be entitled to his costs out of the estate, even though unsuccessful. Where the point in issue is a doubtful point of law, he may be entitled to costs out of the estate. (ii) Similarly, where the case clearly required investigation, or there is a reasonable doubt as to testator's competency, or as to the fact whether the testator was not defrauded or unduly influenced by the principal beneficiary. (iii) Moreover an unsuccessful party may be entitled to be allowed costs out of the estate subject to certain limitations. He may, however, forfeit the right to costs out of the estate, and may be either condemned in costs, or left to pay his own, if- (a) he has endeavoured to make a case of fraud or conspiracy not justified by the evidence; (b) or has pleaded undue influence without justification; (c) being an executor, he knew of facts which should have deterred him from propounding the will. In such a case being a nude executor will not assist him; (d) circumstances disclosed during the case should have constrained him from proceeding farther; (e) he has put the estate to unnecessary expense and litigation; (f) being the principal beneficiary, he is strongly suspected of fraud, or undue influence; (g) he has neglected to make sufficient inquiry. The Court may order an unsuccessful party to pay the costs, even though suing in forma pauperis; or may leave him to pay his own costs. It may order a contribution for costs against one co-defendant in favour of another. An unsuccessful appellant should not be allowed costs out of the estate. A next of kin, or an executor of a former will or person who obtained has administration, may be allowed costs of calling for proof in solemn form before, but not after, the will has been proved in common form. A next of kin is not necessarily liable for costs if he cross-examines witnesses unless his conduct be vexatious or otherwise unjustified. A similar rule applies to an executor who has bona fide obtained probate of a former will, a creditor, or administrator, but not to a residuary legatee under a former will. In numbers of other cases parties have been relieved from liability for costs in particular circumstances. The Court may condemn in costs a party who did not appear after being cited. A defendant beneficiary, who does not dispute the will, may not be allowed costs against an unsuccessful co-defendant.
Professor Dal Pont, in the fifth edition of The Law of Costs provides a more modern version of principles regarding costs in probate litigation also reinforcing the possibility of a broad range of outcomes that stand apart from an outcome that costs follow the event: Dal Pont at 315-321.
The fact that the particular nature of the probate jurisdiction impacts the awarding of costs in probate litigation is accordingly relevant to the question of whether any security for costs ought to be ordered in probate proceedings: Re Condon at [98].

[25]

Considerations and mechanisms in probate proceedings for achieving objectives associated with security for costs rationales

The nature of probate proceedings also gives rise to the possibility of alternate case management orders which might in any given case provide a legitimate basis for the Court not to make an order for security for costs because other orders might achieve the same objectives associated with security for costs rationales: Re Condon at [93].
Thus, there may be no necessity for, or utility in, an order for security for costs if (having regard to all the relevant circumstances): 1. by reference to probate cost principles there is, at the time of the security for costs application, an assessment made by the Court that the respondents (to the security for costs application) might be relieved on a final hearing of the claim - even if unsuccessful - of the burden of paying the applicant's costs; 2. the respondents have an interest in the estate whatever the outcome of the proceedings which interest is of a size sufficiently relative to or commensurate with the security being sought; or 3. there are related estate proceedings likely to be heard contemporaneously with or shortly after the probate proceedings in which the respondent may have an arguable case to an award of property of a size sufficiently relative to or commensurate with the security being sought (e.g. family provision proceedings): cf Re Condon at [94]-[95].
In particular, in probate proceedings, if the respondent to an application for security for costs has, even on the applicant's case, a relevantly sizeable entitlement to a share in the deceased's estate irrespective of the outcome there may be no utility in making any order for security for costs because any order for costs awarded against such a respondent may, in the ultimate administration of the estate, be able to be set off pursuant to the principles in Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171. A particular instance of the setting off of an entitlement in an estate and costs orders in estate administration proceedings is evidenced in the decision of White J (as his Honour then was) in Public Trustee v Gittoes aka Caldar [2005] NSWSC 373 at [138].

[26]

Are the respondents "defendants" for the purposes of r 42.21 UCPR?

The application for security for costs as argued by the applicant is premised on the basis that she is "a defendant" and the respondents are "plaintiff[s]" ordinarily resident outside Australia: r 42.21(1)(a) UCPR.
That begs the question as to who is a "defendant" and "plaintiff" for the purposes of the UCPR and, in particular, r 42.21.
Perhaps surprisingly, there is no definition of "plaintiff" or "defendant" in the UCPR at least generally for the purposes of the UCPR.
There is a specific definition of "plaintiff" (meaning "a person by whom proceedings are commenced or on whose behalf proceedings are commenced by a tutor) and "defendant" (meaning "a person against whom proceedings are commenced") in r 59.2 UCPR. However, that is only for the purposes of Pt 59 UCPR dealing with judicial review proceedings.
The UCPR has a provision which addresses definitions more generally, namely, r 1.2. That rule stipulates that words and expressions that are defined in the Dictionary at the end of the UCPR have the meaning set out in the Dictionary: r 1.2(1) UCPR. It also provides that notes (what lawyers would describe as essentially "marginal notes") included in the rules do not form part of the rules: r 1.2(2) UCPR. The Dictionary at the end of the rules (which is located after Sch 12) does not contain any definition of "plaintiff" and "defendant". Nonetheless, there is a "note" at the end of the Dictionary which provides, relevantly, that "plaintiff" and "defendant" are defined in the CPA either for the purposes of that Act generally or for the purposes of particular portions of that Act and consequently have the same meaning in the rules.
Possibly, one might be stymied at that point in considering whether in light of the fact that marginal notes do not form part of the rules one is permitted to make reference to definitions in the CPA for the purposes of understanding terms in the UCPR.
The CPA contains definitions of "plaintiff" and "defendant". Specifically, "plaintiff" means "a person by whom proceedings are commenced, or on whose behalf proceedings are commenced by a tutor, and includes a person by whom a cross-claim is made or on whose behalf a cross-claim is made by a tutor": s 3. Defined that way, a "plaintiff" is a party who actions or commences either proceedings or a cross-claim. A similar definition appears for "defendant" which term means "a person against whom proceedings are commenced, and includes a person against whom any cross-claim is made": s 3.
The CPA refers to rules of Court: e.g. s 56. It is clear that there is a legislative interaction between the CPA and the rules of Court with the CPA making provision for "uniform rules" which are those rules made, or taken to have been made, under s 9 CPA. Technically, because both UCPR and the CPA provide that notes included in the Act and the rules do not form part of the Act and the rules, there is no at least express or direct way that one would act upon the note at the end of the Dictionary in the UCPR regarding use of words and expressions defined in the CPA for the purposes of concluding that they have the same meaning in the rules: r 1.2(2) UCPR and s 3(2) CPA.
However, whilst there is not a direct definitional statutory link as between the CPA and the UCPR for construing the words "plaintiff" and "defendant", there is a relevant statutory provision in the Interpretation Act.
Section 11 of the Interpretation Act provides that: 11 Words etc in instruments under an Act have same meanings as in the Act Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made.
Section 11 accords with the position at common law: see, eg, Blashill v Chambers (1884) 14 QBD 479 at 485 per Grove J; Potts or Riddell v Reid [1943] AC 1 at 27 per Lord Porter; Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters) (Herzfeld and Prince) at [14.30] 346.
In the context of s 11 Interpretation Act, an "instrument" means an instrument made under an Act and includes a statutory rule: s 3 Interpretation Act. As noted above, a "statutory rule" includes a rule of Court: s 21 Interpretation Act. Accordingly, the meaning of "plaintiff" and "defendant" in r 42.21 UCPR, in the absence of a contrary intention (see Herzfeld and Prince at [3.10] 46), is the same as the meaning of those terms in the CPA (extracted above).
In my assessment, the provisions of s 11 of the Interpretation Act suffice to resolve any dispute regarding the matter. However, even if I be incorrect in that there is yet a further path to the same conclusion. As a matter of common English, the noun "plaintiff" in a legal context is defined as "someone who brings an action in a civil case": Macquarie Dictionary, online ed. The noun "defendant" is defined as a matter of common English in a legal context as meaning "the party against whom a claim or charge is brought in a proceeding": Macquarie Dictionary, online ed. The words "action" and "proceeding" are not defined in the dictionary to the UCPR. The words "plaintiff" and "defendant" defined in that way as ordinary English words are very arguably broad enough to encompass within their meaning the persons who bring or defend a cross-claim. There is authority within the realm of cases dealing with security for costs which suggest that that way of approaching the matter is a legitimate approach: see e.g. the comments of Kirby P (as his Honour then was) in Uptown Sydney Development Corp Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300 at 302-303.
There is no doubt that, at least nominally, the respondents are "plaintiffs" in the probate proceedings. They propound the 2018 Will and seek orders in relation to it.
It is also true that the applicant, albeit a defendant in the proceedings, is a "plaintiff" in the proceedings by virtue of the cross-claim.
The caselaw that I have referred to above, including the decision in Hyland v Burbidge and Willey v Synan, suggests that the question of who is a "plaintiff" and who is a "defendant" is approached by determining, substantively, who the real actor or claimant is in the proceedings. That substantive approach appears in part to be underpinned by common sense.
In my assessment, the real issue in the proceedings (s 56 CPA) is the question of whether the Will propounded by the applicant in the cross-claim is the last true Will of the deceased. Despite some initial reluctance (see T 8), Ms Power eventually accepted on the hearing of the application that leaving aside the family provision claim, at least in the probate proceedings, the effective real issue was whether the Will propounded by her client (the applicant) was the last true Will of the deceased: T 28 (I note the transcript does not record the acknowledgement intimated by Ms Power in Court).
That is the real issue for a number of reasons.
First, the 2021 Will is the last chronological testamentary document of the deceased. Even if it was not propounded by the applicant, the Will has been disclosed to the Court and because it postdates the Will propounded by the respondents, the Court must make a determination in respect of that document in determining any claim for probate of an earlier document.
Secondly, there is no dispute that the 2018 document propounded by the respondents is a valid Will of the deceased. Whilst the respondents make a claim in relation to that document and seek an order that probate be granted to the NSWTG, the validity of the document is not disputed by the applicant.
As a consequence of those two matters and, in addition, how, conventionally, probate proceedings are practically run, at the ultimate hearing of the proceedings the applicant (albeit nominally the defendant/cross-claimant in the proceedings) would be the moving party on the hearing.
On that analysis, the respondents are not substantively speaking "plaintiffs" for the purposes of r 42.21(1)(a) UCPR.
The above is arguably sufficient to dismiss the application for security of costs.
However, to the extent that it can be said that the respondents are plaintiffs in the sense of seeking an order from the Court regarding probate of the 2018 Will, I will proceed to deal with the application on the basis that the respondents might be said to be "plaintiffs" for the purposes of r 42.21 UCPR although as I have noted, I consider there is a strong argument that they are properly to be regarded as "defendants" to the real issue in the proceedings.

[28]

(a) Prospects of success or merits of the proceedings

I have identified what I regard as being the real issue in the proceedings above.
There are, broadly speaking, two grounds of challenge to the 2021 Will. One is a challenge in respect of testamentary capacity and the other is in respect of what are described as suspicious circumstances but effectively going to the issue of whether the deceased had knowledge and approval for the Will.
Understanding of the test of testamentary capacity and the approach of the Court to addressing capacity issues and the question of knowledge and approval has undergone some refinement in recent years.
A catalyst for the refinement in understanding has, in my estimation, to a great extent been a combination of both probate judgments and extrajudicial writings of Justice Lindsay on the topic of probate law (readily accessible in the "Judicial speeches" section of the "Judgments & other publications" webpage of the Supreme Court website). In particular, in Estate Rofe [2021] NSWSC 257 (Estate Rofe), his Honour discussed the framework for testamentary decision-making at [104]-[137].
Leeming JA (with whom Basten JA - as his Honour then was - agreed) in Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 (Mekhail v Hana) at [164]-[172] addressed comments (with which I respectfully agree) regarding the application of the language of testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 (Banks v Goodfellow) at 565 and also in relation to the question of knowledge and approval. His Honour at [168] drew in part upon a paper by Lindsay J namely, "The 'Why' and 'What' of 'Suspicious Circumstances' in Probate Litigation" (Paper), Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018.
It is not necessary to set out in detail the applicable law regarding testamentary capacity. On an interlocutory application such as this, it suffices for me to note that criteria relevant to assessment of testamentary capacity were summarised by Lindsay J in Estate Rofe at [138]-[147]. His Honour indicated (at [140]) that the Banks v Goodfellow criteria provide a logical framework for assessment of testamentary capacity with their identification of the following elements, namely, that a competent testator must: 1. understand the nature of a Will and its effects; 2. understand the extent of the property of which he or she is disposing; 3. be able to comprehend and appreciate or assess the claims to which he or she ought to give effect; and 4. be free of any medical condition that prevents him or her from having, or duly exercising, those faculties in the making of a Will.
In terms of what might be described as substantive evidence relevant to the contest over the 2021 Will the only evidence provided by the applicant to date is the affidavit of Mr Whiley which addresses the circumstances of the deceased attending upon him for the purpose of making the 2021 Will. The respondents' affidavits provided some information bearing upon their relationship with the deceased and, accordingly, reasons why they might be regarded as objects of testamentary recognition by the deceased.
Accepting for the moment that these proceedings are in their infancy or fledgling stages the following can be said.
My assessment is that there is likely to be no serious issue that the deceased understood the nature of a Will and its dispositive effect. The deceased had made (at least) 7 Wills prior to the 2021 Will.
There is presently no evidence as to the extent of the property of which the deceased was able to dispose quite apart from evidence of the deceased's understanding of the extent of the property. Apart from reference to the fact that the deceased owned a property at St Peters there was surprisingly no material before the Court outlining the nature of the property that was owned or able to be disposed of by the deceased. There is no evidence as to the value of the St Peters property. Ms Power, during the hearing, suggested that the estate was worth more than $1 million. When I probed her in relation to that figure, she accepted that there was no evidence as to the value of the estate other than that "there's an unencumbered property in Sydney": T 25. Strictly speaking, there is no evidence as to whether the property was unencumbered or not. The affidavit of Mr Whiley does not reveal that Mr Whiley asked the deceased any questions about the extent of his property.
A material consideration in the assessment of testamentary capacity is the question of whether the deceased was able to comprehend the person(s) who might naturally have a claim to be considered for testamentary recognition.
In relation to whether the deceased was able to comprehend and weigh up the claims to which he ought to give effect to for the purposes of the 2021 Will, importantly, the affidavit of Mr Whiley does not reveal that this was the subject of any detailed discussion with the deceased. Specifically, it does not reveal that: 1. he asked the deceased any questions which might elicit an understanding of which persons might be legitimate beneficiaries to which he ought to consider in the disposition of his estate; 2. he asked any questions in relation to whether the deceased had an existing Will nor who are the beneficiaries under that Will nor why the deceased might consider making a material change from the terms of any earlier Will (in this case relevantly the 2018 Will).
This bears some significance not merely on the question of testamentary capacity but also on the question of knowledge and approval. I suggested to Ms Power that a relevant consideration on the application is that there is so far as Mr Whiley's evidence discloses no consideration of the position of the respondents who might be regarded as natural beneficial objects.
Ms Power indicated that "the obvious inference is the natural objects are my client and her children" and a bit later stated "an adult sister and an adult niece and nephew are not ordinarily sort of natural objects": T 17.
However, the facts of the case are important. As matters presently stand, there is a paucity of evidence from the applicant on this issue.
There is, however, considerable evidence from the respondents on this issue, demonstrating why they would be regarded as persons whom the deceased would naturally consider for testamentary provision.
Pastora (now aged 87) was raised with the deceased and outlines evidence of a significant relationship with him over the years and her particular reliance upon the deceased for financial assistance over the years.
Lidia, for her part, states that the deceased was like a father to her indicating that they went on vacation together and he supported her with everything she did and looked after her particularly in high school and university years.
Omar, for his part, states that he was very close with the deceased throughout his life and thought of him like a father and that he treated Omar like a son. That evidence is given some force by Omar's indication that in about 1999, when Omar was aged 17, the deceased tried to adopt him and organise residency for him in Australia.
Further, the history of the deceased's Will-making shows that the respondents and, in particular, Pastora were not merely natural objects of testamentary consideration by the deceased but consistently major beneficiaries of his estate over a 30-year period up to and including 2018, being the year of the last Will before the final disputed Will.
In the deceased's 1989 Will, Pastora receives 78% of the deceased's estate. In the 1990 Will, Pastora receives 90% of the deceased's estate. In the 1997 Will, Pastora and Omar receive 40% of the deceased's estate with the other 60% being distributed amongst other nieces and nephews. In each of the 2004 Will and the 2005 Will, the respondents receive the entirety of the deceased's estate (in the 2004 Will this is expressed as: Pastora 55% [sic], Omar 35% and Lidia 15% and in the 2005 Will this is expressed as: Pastora 50%, Omar 35% and Lidia 15%).
In particular, a very critical consideration is the fact that notwithstanding that the deceased had married the applicant in 2015 the deceased three years later in the 2018 Will gave the overwhelming majority of his estate to the respondents rather than to the applicant with the applicant receiving effectively 25% and the respondents 75% (each receiving one of three parts out of a total of four parts).
On any view of the matter, that history of significant testamentary provision for the respondents is a highly material consideration in the Court's determination of issues regarding both testamentary capacity and knowledge and approval.
In terms of the deceased's medical condition there was also a paucity of evidence. Although the particulars of the statement of claim referred to the deceased being hospitalised at the Royal Prince Alfred Hospital where he was said to receive treatment for respiratory failure and cancer of the lymph nodes, bone marrow and spleen (namely, advanced diffuse large B-cell lymphoma) - which treatment is said to have included chemotherapy - there was no particular evidence on the application adduced by either of the parties regarding the deceased's condition.
When I raised this, Ms Power sought to tender a copy of the deceased's death certificate. That was received into evidence without objection and marked as Exhibit A2. The applicant is the informant for the detail in the death certificate. The cause of death and duration of last illness includes descriptions to the effect that there was "Respiratory failure, weeks" and "Diffuse large B-cell lymphoma, 5 months".
I pause to note that on the death certificate Wendell and Christopher are named as children of the deceased. As I understand the evidence in the proceedings, that is not, strictly speaking, correct. Ordinarily, stepchildren are not nominated as children for certificate purposes pursuant to the Births, Deaths and Marriages Registration Act 1995 (NSW).
As yet there is no evidence from either the applicant or either of the attesting witnesses who attended upon the deceased for the purpose of making the 2021 Will. I have outlined above a summary of the evidence of Mr Whiley. It is notable that there is very little material in Mr Whiley's affidavit which exposes any observations and reasoning regarding his assessment of the deceased's capacity.
There are a number of statements in the affidavit where it is clear that his assessment of capacity is described by reference to the unrecorded observations of other parties. Mr Whiley refers to what he says was confirmation to him from the deceased's doctors that the deceased had capacity.
However, the only actual discussion that Mr Whiley deposes to is with one of the deceased's doctors, namely, that of Dr Abadir on 1 September 2021 (two days before the deceased signed the Will). I have set that out above. It suggests that Dr Abadir had attempted to call Mr Whiley to indicate that he did not think that the deceased had capacity to sign his Will and that Dr Abadir had stated that it was complicated and that the deceased would go in and out of capacity based on the treatment that would be given to him.
No attempt was made on the hearing of the application to put even basic evidence from the applicant or either of the attesting witnesses that deposed to capacity. Whilst I appreciate forensic decisions may have been made on the applicant's side as to the extent of evidence to be adduced on the interlocutory application, the Court's consideration of the prospects of success or merits of the proceedings must be principally grounded on the evidence that has been adduced.
It is evident that to the limited degree that Mr Whiley saw the deceased it was not in person contact but only via a ZOOM audio visual conference.
The matters I have noted above are not intended to be any ultimate findings on issues of testamentary capacity. I am mindful that the proceedings are in their infancy.
However, as the Court is called upon to make some assessment of the prospects of success or merits of the proceedings (and without intending to be critical of Mr Whiley or the drafter of his affidavit), the above matters (limited as they are) in my estimation certainly to use the terminology from Bailey v Bailey provide a sufficient basis for the respondents to displace a prima facie case of capacity to support a submission that the 2021 Will ought not to be admitted to probate.
In assessing prospects for success in the matter, it is well arguable that the respondents have prospects of success on the hearing. At the very least, they are able to submit that mere tender of the 2021 Will would not, in a context of the above limited evidence, carry with it a presumption that it was a Will of a capable testator. Prima facie, there are matters occasioning doubt as to whether the deceased had capacity for the making of the 2021 Will.
The second basis for challenge to the 2021 Will relates to allegations of suspicious circumstances and knowledge and approval.
"Testamentary capacity" and "knowledge and approval" are distinct concepts but, in practice, evidence bearing upon one concept may also be relevant to consideration of the other: Estate Rofe at [147] citing Mekhail v Hana at [128]; Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [75] per Macfarlan JA (Bell ACJ and McCallum JA agreeing).
In considering whether a testator knew and approved the contents of his or her Will, the focus for attention is whether the testator knew the contents of the Will and appreciated the effect of what he or she was doing, so that it can be said that the Will contains the real intention and reflects the true Will of the testator: Estate Rofe at [148].
In recent years, the Court of Appeal - in particular, Leeming JA - has commented on the requirement that a testator know and approve a Will: Mekhail v Hana. Ultimately, this is a question of evidence. For example, the law does not presume (certainly not in any conclusive way) that a testator whose Will is read out loud to him and who then executes it is taken to have known and approved it: Lewis v Lewis [2021] NSWCA 168 at [180] per Leeming JA (Meagher and Payne JJA agreeing).
On the issue of knowledge and approval, the striking aspect of the evidence of Mr Whiley that I have described above is the fact that all of his attendances upon the deceased were in a context where the applicant who benefits from the terms of the Will (in the sense of receiving significantly greater provision under it than the 2018 Will), was present.
It is clear from the email correspondence annexed to Mr Whiley's affidavit that all the email communications with Mr Whiley and his firm were relevantly with the applicant and not with the deceased.
Further, on the day that the Will was signed, Mr Whiley indicates that in a "meeting" with the deceased via a ZOOM virtual meeting, he took the deceased through the clauses of his Will but with the assistance of the applicant providing translation "as required".
Whilst it is not for me to make any final determination regarding the case for knowledge and approval, it is self-evident that on the limited material that the applicant has chosen to place before the Court on the application for security for costs there is certainly, prima facie, matters occasioning doubt as to whether the deceased had knowledge and approval for the making of the 2021 Will.
Whilst I have spent some time addressing these matters it is relevant to do so because Ms Power made the submission that the respondents' case is "very weak".
For the purposes of assessing the application I do not accept that that is an accurate description of the position. Rather, I consider that based on the limited material before the Court at the moment the respondents clearly have available to them evidentiary material and submissions to support the proposition that they have well arguable prospects of success of challenging the validity of the 2021 Will.

[29]

(b) Genuineness of the proceedings

The applicant submitted that the plaintiffs in invoking or resorting to the jurisdiction of this Court for the purpose of obtaining affirmative relief were seeking a forensic advantage for themselves. The applicant says that but for the plaintiffs' statement of claim to set aside the 2021 Will the principal proceedings would be a "routine" non-litigious application for a grant.
The so-called forensic advantage is unclear to me. The history of the matter is that following the deceased's death, as outlined above, the applicant filed a notice of intention to apply for a grant of probate. The respondents filed a caveat. The applicant took no steps to have the caveat removed. The respondents lodged a second caveat having regard to the fact that caveats expire after a period of six months. The applicant, when faced with that, failed to take any steps to remove the second caveat or otherwise commence proceedings to propound the 2021 Will.
Conventionally, an applicant faced with the lodgement of several caveats who determines not to make any application to seek their removal would ordinarily take steps to bring the matter to a head by commencing proceedings to seek a grant of the Will propounded by such applicant in solemn form and naming the caveators as defendants to that claim. The applicant did not do that.
In light of the above, it appears that the respondents in a sense grasped the nettle and commenced the proceedings to effectively bring the matter to a head. I do not think it can be said that in commencing the proceedings the respondents sought to obtain some form of forensic advantage, at least in light of the context that I have just recited.
Ms Power submitted that the matter of "genuineness" was tied up in her submissions regarding the prospects of success of the proceedings: T 21. To the extent that one might infer that there was, in light of that submission, some weakness or lack of genuineness of the respondents' claims in the proceedings, I do not accept that. Though, I note that Ms Power, at least expressly, did not suggest that they were disingenuous.

[33]

(f) Whether an order would stifle the proceedings

A plaintiff who wishes to submit that an order for security would stifle the litigation bears the onus of showing that this is so: Rusiti v Alkhoshaibi [2007] NSWSC 1374 (Rusiti) at [56] per McDougall J citing Austin J in Fiduciary Limited v Morningstar Research Pty Ltd [2004] NSWSC 664; (2004) 208 ALR 564 at 582 [78] and Einstein J in Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 at [66]. Thus, for example, to demonstrate that an order for security might stifle litigation a plaintiff might seek to adduce evidence to show that they had no prospect of putting up or obtaining security: Rusiti at [56].
The evidence as to the respondents' financial resources was provided not directly by them but in the 22 December 2022 affidavit of Mr Briffa. Evidence of Mr Briffa in that affidavit was deposed to on the basis of information from each of the respondents and his belief as to the truth of those facts. There was no evidence in that affidavit or otherwise that any of the respondents are unable to borrow or otherwise raise funds for security.
In terms of raising money to provide security, Ms Power submitted that Omar's pickup truck might be a saleable vehicle. I wondered how realistic that might be in light of the fact that it was evidenced that it was used on the farm. Ms Power accepted, in response to a question from me, that it was an available inference to draw from the evidence that the pickup truck was a type of working vehicle: T 6. I further raised the question as to whether in light of it being a working asset, he relied upon it for employment or work purposes such that if he sold it, he might become unemployed or unable to earn income. Ms Power disputed that that was an available inference that could be drawn: T 6.
The evidence indicates that the pickup truck is a replacement truck for a truck purchased by the deceased in about 2015 and put in Omar's name so that Pastora could travel by motor vehicle and "not suffer too much raising cattle". Omar has worked as a farmer since early 2020. There is evidence that the vehicle is used principally on the farm. Without anything further, I would admit of the possibility that the current pickup truck might potentially be used by Pastora or Omar in the process of generating income. However, I do not think the evidence permits me to draw that conclusion in any decisive way. What can be said is that sale of the vehicle would likely have some material impact upon the lives of Pastora and Omar given the above-mentioned evidence.
Omar's only other substantial asset is the land at Calderon. Omar purchased land at Calderon in 2016. He started to build a house on that land but did not have enough money to finish the house. The deceased paid for the house to be completed so that it is habitable. Omar lived at the house between 2016 and April 2020. He now rents the Calderon house and uses the money he receives to support Pastora noting that the money "we make here is barely enough to survive". In light of that evidence, it does seem to me that any potential sale of the property in Omar's name would clearly have an impact upon his income.
No evidence was adduced as to how people in the position of the respondents might in Ecuador be able to go about attempting to raise funds on the security of real property.
I have outlined some of the respondents' financial details above. Some further context to their financial circumstances appears in their own affidavits. The following may be noted.
Pastora is now aged 87. She describes her occupation as being a subsistence farmer. She deposes to the fact that in the 1970s, the deceased moved to Australia to earn good income so that he could provide for his family including Pastora "because we were, and still are, very poor". Pastora goes on to detail that, between the 1970s and about 2002, the deceased transferred money to her twice a year to contribute towards general living and household expenses. She states that the money the deceased transferred to them made a significant difference to their lives in Ecuador and the money was used to pay for property taxes, groceries and corn weeding.
In the early 2000s, the deceased opened a joint account with Pastora in Ecuador and put money in it so that she had access to additional money whenever she needed it. In 2003, when Rosa passed away, Pastora indicates that her family and she relied heavily on the deceased both emotionally and financially during that time.
Pastora further indicates that before the deceased travelled to Australia in 2018 the deceased made sure there was enough money in the joint account so that she could make withdrawals whenever she needed it. She indicates that the account is still active and that she uses the money to pay for household expenses including groceries and other expenses.
Lidia is an accountant but is aged 65 and I infer not in the prime of her working career. She indicates that the deceased sent money to pay for her high school and university studies and also contributed to the cost of raising her children and that he sent money to cover her personal expenses. She states that the deceased was her main support person financially and emotionally.
Whilst the Court would have been assisted by some more detail in understanding the respondents' ability or inability to raise security, in light of the evidence that was adduced on the application the following matters seem material to their ability to raise security, if security were to be ordered: 1. the respondents are in general terms people who would be considered to be financially poor; 2. to the extent that they have needed financial assistance over the years the deceased was the person who provided it. He is no longer available to provide that assistance to them; 3. it is not blindingly obvious that they have ready ability to raise substantial funds to provide security for costs; 4. as a matter of common sense the relative meagre value of their collective assets would likely provide some limitation on the amount of money that they could borrow; 5. even assuming that Omar was able to borrow against the farm property or that Lidia was able to obtain some borrowings against the house owned by her husband, the amount of any borrowings would likely be limited not only by the small value of those properties, but potentially also by whatever prevailing guidelines there are as to loan to value ratios; and 6. if one leaves aside the property in which Pastora and Omar are residing (which is a property in the name of the deceased's parents) and also leaves aside the property in which Lidia resides (which is in the sole name of her husband), the real and personal property of the respondents would, if collectively totalled and realised, be arguably only just sufficient to cover the entirety of the security sought.

[41]

(n) Enforcement in Ecuador

Neither counsel was able to direct me to any particular provisions regarding enforcement of a judgment of this Court in Ecuador.
Mr Brown made reference to the Foreign Judgments Act 1991 (Cth) (Foreign Judgments Act).
The position regarding the extent to which a judgment obtained in the Supreme Court of New South Wales may be enforced in Ecuador is unclear, but it is probable that such enforcement would be difficult and potentially costly, given the absence of reciprocal enforcement protocols between Australia and Ecuador.
The Foreign Judgments Act governs the enforcement of foreign judgments within Australia domestically. That is, if a judgment is obtained in a Court of specified overseas jurisdictions, it may be registered in an Australian Court domestically and enforced as if it were a judgment of that Australian Court. The Foreign Judgments Regulations 1992 (Cth) outlines (in a schedule) a list of Courts in foreign countries with respect to which the Foreign Judgments Act applies. Ecuador is not a jurisdiction included in that schedule. Accordingly, at first blush, Ecuador is not a jurisdiction with "reciprocal enforcement protocols" with Australia (cf Re Condon at [103]).
The issue at hand, however, relates not to the enforcement of a foreign judgment in Australia domestically but, rather, to the amenability of a costs order to enforcement in Ecuador, should the applicant's case succeed at trial and a costs order be obtained against the respondents. The extent to which a costs order made in the Supreme Court of New South Wales may be enforced in Ecuador depends, at least in part, on Ecuadorian domestic law.
In Donoghue v Commissioner of Taxation [2018] FCA 468, Logan J dealt with a security for costs application concerning a litigant who was living in London at the time of the application but whose home address was stated to be in Ecuador (see at [12]). When considering the factors relevant to the making of the order, Logan J commented on the extent to which a prospective judgment debt might have been able to be enforced in Ecuador as follows (at [40]): 40. Though raised by me in the course of submissions, there was no definitive position given as to whether, in the event of success, the Commissioner would be able to enforce in the United Kingdom, much less in Ecuador, a judgment debt in respect of costs. That he may be able so to do is no reason in itself for not ordering security for costs. The same applies in respect of the substantive revenue liability debt. As to that, at common law, an Australian judgment in respect of that liability would have the status of a foreign revenue judgment such that its enforceability abroad may be moot. That, of course, could be the subject of alteration by international agreement and related statutory provision. As I have said, though the subject was raised, it was not definitively answered in submissions. I have not, in the time available, been able to reach any concluded view myself on that subject.
The Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague Judgments Convention) (Convention) is an instrument which may assist litigants in enforcing judgments obtained in Australian Courts in foreign jurisdictions in the future.
However: 1. the Convention is not yet in force; 2. Ecuador is not a contracting party to the Convention; and 3. the Convention does not apply to "wills and succession" matters (Article 2(1)(d)) - so there would be a question as to the applicability of the Convention to proceedings such as these proceedings which relate to the estate of a deceased person (depending on their characterisation).

[42]

Discussion

Whilst Ms Power submitted that the respondents' case is very weak and sought in her written submissions to analyse the evidentiary material relied upon by the respondents I do not accept, as I have indicated, that the respondents' case is very weak or (as Ms Power otherwise described it) that their prospects of success are "very low". On the contrary, based on the materials adduced on the application, I consider that the respondents have well arguable prospects of success of challenging the validity of the 2021 Will.
I have no real doubt as to the genuineness of the respondents' claims in the proceedings.
It is beyond question that in terms of the disclosure of assets that the respondents own, the respondents are all, comparatively speaking, impecunious in the sense of having little money or financial resources.
I have struggled in assessing whether an order for security for costs would stifle the proceedings. Strictly speaking, they adduced no express evidence to show that they had no prospect of putting up or obtaining security.
Nonetheless, as I have discussed above, in light of the evidence regarding their financial position which reveals that they have very modest assets and in light of the fact that they relied upon the deceased for financial assistance, even if one could not strictly speaking conclude that an order for security for costs would actually stifle the proceedings, the above matters suggest to me that it might well be a real burden for the respondents to provide security of the order being sought.
As I have discussed above, the nature of probate proceedings is a relevant aspect to consideration of the question of security.
I consider that there is a strong (and perhaps even a decisive) argument in the proceedings that the applicant is the effective plaintiff to the real issue in the proceedings. Whilst it is true that the respondents seek the grant to the NSWTG of the 2018 Will, the applicant does not dispute the validity of that Will. This is a material point of distinction from the facts of Re Condon in which the plaintiff in that case was, in forensic terms, the moving party in the proceedings (it being incumbent on him to prove the disputed 2006 document): Re Condon at [119].
Mr Brown submitted, and I accept, that on the very limited evidence that is available at the moment, there is a distinct argument that a probable outcome of costs would likely be that there would be no order as to costs against the respondents or that they may even get their costs out of the estate on the basis that there is a legitimate enquiry as to whether the 2021 Will is the last free Will of a capable testator or what I have described otherwise as there being a well arguable case of matters occasioning doubt as to the validity of that Will: T 35.
Having regard to the matters that I have discussed above under the heading of "Consideration of relevant matters" and, in particular, having regard to the matters that I have just mentioned, I consider that it is not appropriate on the material before me to make an order for security for costs against the respondents.
One question which was raised on the hearing was whether an order for security might be made against one or two of the respondents but not the other or others. Ms Power provided a submission to the effect that where plaintiffs' claims must succeed or fail together, security will generally not be ordered against only one of them citing the decision of Brereton J (as his Honour then was) in Street v Luna Park Sydney Pty Ltd [2006] NSWSC 1317 at [28].
In light of the decision I have come to, it is not necessary for me to make a determination as to whether I would make an order for security against perhaps Omar and/or Lidia but not against Pastora.

Estate of Guamani; Guamani v De Cruzado

At a glance

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Judgment (44 paragraphs)

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Legislation Cited (11)

Cases Cited (61)

Cited By (9)