mixed. Orders made: (1) Pawel Knap removed as plaintiff and cross-defendant but remains liable/entitled in relation to costs accrued up to removal; (2) the Four Polish Beneficiaries (Romana Pawlus, Anna...
Key principles
Where there is no acting executor or administrator authorised to defend proceedings concerning an estate, beneficiaries who have a clear interest in resisting a plaintiff's claim...
An appointment of an interim administrator pendente lite under s 73 of the Probate and Administration Act 1898 (NSW) does not, absent further order, vest authority to defend...
A defendant in probate/estate litigation (here Ibdah and the Four Polish Beneficiaries), once joined, is entitled to raise challenges to competing informal wills (including...
Removal of a party (here the solicitor-plaintiff Mr Knap) from proceedings may be ordered, but the court can preserve that person's liabilities and rights as to costs accrued up...
Issues before the court
Who are the proper defendants in the Trust Proceedings instituted by Kasia alleging a contractual promise by the deceased to leave her the entire...
Plain English Summary
The Supreme Court dealt with a complex estate dispute involving three competing testamentary documents and a separate claim that the deceased promised her estate to a claimant. The judge ordered that the solicitor-plaintiff be removed but remain liable for costs incurred while he was a plaintiff; joined four Polish-resident beneficiaries as cross-defendants in the probate action and as defendants in the trust action (subjecting any entitlements to a charge to secure costs); permitted the defendant-claimant's joinder challenges to be tested by the joined defendants; and removed the interim administrator from the trust action because his appointment was limited to asset administration and did not authorise him to defend substantive litigation. The court balanced procedural fairness, standing, and proportional security for costs.
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Deep Dive
2,092 words · generated 29/06/2026
Does an interim administrator appointed pendente lite under s 73 have authority to be defendant and defend substantive Trust Proceedings?
Are Ibdah and the Four Polish Beneficiaries entitled to plead and litigate challenges (including suspicious circumstances) to the 2013 Will in the...
Should the Four Polish Beneficiaries be required to provide security for costs as a condition of joinder, given they are resident in Poland?
Cited legislation
5 cited instruments linked from this judgment.
What happened
Maria Zbrozek died on 2 July 2017. There are three competing testamentary documents relevant to the estate (residue estimated at about $30 million): a valid 1991 will (appointed executors, left residue to nephew Czeslaw), an informal 2013 document propounded by Katarzyna (Kasia) as a will naming Krysia Walker as executor, and an informal 2014 document propounded by the plaintiffs Pawel Knap and Ibdah Zabalawi (the 2014 Will). The 2013 and 2014 documents are not executed in formal statutory form and differ materially in who receives the residue (notably whether Ewa and Kasia are beneficiaries and what share Kasia receives).
Two parallel sets of proceedings were before Rein J:
Probate Proceedings (2018/94300): plaintiffs (initially Knap and Ibdah) propound the 2014 Will; Kasia cross-claims propounding the 2013 Will. Ms Walker recorded she would take no active part other than as a witness.
Trust Proceedings (2020/38962): Kasia sued the interim administrator, claiming Maria promised to leave the whole estate to her (a constructive trust / contract claim in substance).
Interlocutory disputes litigated before Rein J included:
Whether Pawel Knap (a solicitor; initially plaintiff and also attorney for some beneficiaries) should be removed as a party given conflict/potential personal liability for costs.
Whether four Polish-resident beneficiaries (Romana Pawlus, Anna Kapturkiewicz, Barbara Pieton, Elzbieta Juszczak, "Four Polish Beneficiaries") should be joined as cross-defendants in the Probate Proceedings and as defendants in the Trust Proceedings.
Whether those foreign-resident beneficiaries should provide security for costs and in what form.
Whether the interim administrator (Charles Morgan), appointed pendente lite under s 73, was a properly joined defendant in the Trust Proceedings or should be removed.
Whether Ibdah and the Four Polish Beneficiaries could plead an amended defence/cross-claim challenging the 2013 Will on grounds of suspicious circumstances; and whether the Trust Proceedings and the Probate Proceedings should be amalgamated (deferred for separate hearing).
Rein J made interlocutory orders: Knap removed as plaintiff/cross-defendant but preserved his cost liabilities up to removal; the Four Polish Beneficiaries joined as cross-defendants in Probate Proceedings with any estate share they might obtain charged to secure adverse costs; Ibdah was given leave to file specified amended pleadings; in the Trust Proceedings Mr Morgan removed as defendant and Ibdah and the Four Polish Beneficiaries were joined as defendants, with the Trust Proceedings to continue without a representative of the estate.
Key practical features: the court accepted that where no executor is acting to defend the estate, beneficiaries who would be adversely affected are proper defendants; an appointment pendente lite to administer assets does not automatically authorise that person to defend substantive claims as an administrator ad litem; and security for costs for foreign defendants may be achieved by charging their prospective estate entitlement.
Why the court decided this way
The decision turns on several connected principles and practicalities.
Representation of the estate versus parties with an interest
Rein J started from the orthodox rule that when an executor or personal representative represents the estate, beneficiaries generally do not have a right to be joined in proceedings instituted or defended by that representative (citing Alexander v Perpetual Trustees WA Ltd and general trust law principles) [see judgment]. But when there is no functioning executor or personal representative actively defending, beneficiaries who are “most materially interested” and would be prejudiced by abandonment of claims are properly joined. The court applied authorities such as Ramage v Waclaw and Stainton to support the proposition that beneficiaries may, in special circumstances, act to enforce or defend claims affecting the estate if the representative does not act (see paragraphs in judgment discussing those authorities).
In this case the 1991 executors had not acted (one had renounced; the other apparently not involved); there were no named executors in the 2014 Will; the named executor in the 2013 Will (Ms Walker) filed a submitting appearance and was effectively not acting to defend the estate. That lack of an active representative justified joining the beneficiaries as defendants so they could defend Kasia’s Trust claim and protect their interests.
Distinction between pendente lite and ad litem appointments
Mr Morgan had been appointed interim administrator under s 73. Rein J emphasised the different legal effect of such an appointment: a pendente lite appointment enables management and protection of assets pending grant, but it is not the same as appointment ad litem (s 40) which permits bringing or defending proceedings and binds the estate by the outcome. Mr Morgan and his counsel acknowledged he lacked authority to defend the Trust Proceedings. The joinder of Mr Morgan as defendant was therefore irregular and he was removed as defendant in the Trust Proceedings. The court’s reasoning rests on statutory and procedural distinctions and practical fairness.
Entitlement to litigate competing informal wills and the “suspicious circumstances” approach
Kasia argued that Ibdah and the Four Polish Beneficiaries should not be permitted to raise an attack on the 2013 Will because some of them had limited or no personal stake under that instrument (standing issue). Rein J rejected that narrow approach. Because they were joined as defendants, they had recognised interest in defending and in testing the provenance and execution of the 2013 Will. The judge also noted the utility of taking a holistic approach to evidence across the competing documents, particularly where drafts and similar documents in a solicitor’s file overlap with both instruments.
Security for costs for foreign-resident beneficiaries
While security might be appropriate in some cases, the court balanced proportionality. The Four Polish Beneficiaries would, if the 2013 Will prevailed, receive significant in-jurisdiction entitlements. The court accepted a charge over any entitlement sufficient to secure adverse costs orders rather than demanding up-front cash security. Rein J explicitly declined to permit Kasia to use her separate Trust Proceedings to require broader security in the Probate Proceedings.
Removal of solicitor-plaintiff with preservation of cost liabilities
Mr Knap accepted he should withdraw given potential conflicts. The court removed him but specifically preserved his liabilities and rights regarding costs accrued to the date of removal. The court refused to make an order that he pay Kasia’s costs irrespective of outcome, noting insufficient basis to find he acted without authority.
Practical considerations such as the desirability of reducing duplicative costs, coordinating representation, language needs of Polish-speaking beneficiaries, and mediation were discussed but treated as ancillary to the legal conclusions.
Before and after state of the law
Before: The authorities already recognised two core propositions:
Executors/personal representatives, when acting, are the natural parties to bring or defend claims affecting an estate and beneficiaries ordinarily do not have a right to be joined when a representative is acting (see Alexander and trust law texts).
Beneficiaries may in special circumstances bring or defend claims affecting estate property where an executor refuses or neglects to act (Ramage and older authorities).
After (this decision): Rein J applied those principles to a modern, multi‑document contested probate context and made clear:
Where there is no acting executor, beneficiaries with a material interest are proper defendants to trust/probate claims; the Court is willing to join foreign-resident beneficiaries to both probate and trust proceedings where necessary to protect interests.
The court emphasised the formal distinction between an interim administrator appointed pendente lite under s 73 and an administrator ad litem with litigation authority, and limited the scope for assuming that a pendente lite administrator can be treated as the estate’s litigation representative without express court direction.
Practically, the court endorsed charges over prospective estate entitlements as an appropriate and proportionate means of securing costs from foreign beneficiaries in the probate context.
The ratios are consistent with prior authorities but develop practical interlocutory practice in large, multi-jurisdictional estate disputes.
Key passages with plain-English translation
"Where the Estate is represented by an executor it is the executor who is required to bring proceedings and defend proceedings on behalf of the Estate..." (Rein J)
Plain English: If an executor is actively representing the estate, they handle litigation for the estate; beneficiaries do not usually step into that role.
"Mr Morgan has been appointed in effect as administrator pendente lite - he has not been appointed administrator ad litem to defend these proceedings."
Plain English: Morgan can manage estate assets while probate is unresolved, but he was not authorised to litigate about the estate unless the court said so.
"Ibdah and the Four Polish Beneficiaries are entitled to file a cross claim... it would not be in the interests of justice to deny them that opportunity."
Plain English: Plaintiffs joined to defend have the right to raise relevant challenges to competing wills; fairness requires they be allowed to do so.
"If any personal costs order is made... the share of the Estate... shall be charged ... so that no distribution... shall take place unless appropriate arrangements have been made to provide security."
Plain English: If the court orders those beneficiaries to pay costs later, the court will ensure their receiving share is held as security until their cost liability is dealt with.
What fact patterns trigger this precedent
A contested estate with multiple informal testamentary instruments prepared within a short timeframe and overlapping drafts/evidence.
Absence of a functioning executor/personal representative willing to defend (executors renouncing or refusing to act, no executors named, or executor filing a submitting appearance).
A separate substantive Trust/contract claim against the estate where the claimant has joined an interim administrator pendente lite as defendant without court direction to expand the role to ad litem.
Foreign-resident beneficiaries who have significant potential in-jurisdiction entitlements but live abroad and might be claimed as unable to provide conventional security for costs.
Situations where interests and potential conflicts mean a solicitor-plaintiff should withdraw or be removed but cost liabilities for conduct while a party exist.
If those elements appear, the court’s approach in this judgment is a readily applicable guide: join adversely affected beneficiaries as defendants; treat pendente lite administrators as asset-managers unless the court orders otherwise; use charges over prospective estate entitlements to secure costs where proportionate.
How later courts have treated it
At the time of Rein J’s decision the reasons cite and apply established authorities (Alexander, Ramage, Milillo, Poulos, Mekhail). Later courts will look to Rein J for practical interlocutory guidance about:
The appropriate defendant in trust actions when no executor defends;
The distinction between pendente lite and ad litem appointments;
Appropriate mechanisms to secure costs against foreign beneficiaries.
Practitioners should expect courts to adopt the proportional approach to security (charge over entitlement) where beneficiaries stand to receive significant estate assets, but also that facts will matter: convincing evidence of impecuniosity or flight risk could still justify conventional security. Rein J’s emphasis on fairness and proportionality will be persuasive in subsequent interlocutory applications in contested probate litigation.
Still-open questions
Scope of a pendente lite administrator’s duties: Rein J removed Mr Morgan because he lacked authority to defend. Courts will continue to be asked what specific relief (if any) is required to convert a s 73 appointment into one capable of defending litigation, and what process should be followed to do so. The judgment suggests an application and express court direction are needed, but the appropriate test for granting ad litem status in contested contexts may be further refined.
Quantification and enforcement of charges over prospective entitlements: the court accepted a charge over estate shares as adequate security for costs. Further litigation may clarify procedural mechanics, priority, and enforcement processes for such charges (timing of crystallisation, impact on interim distributions, conflicts between competing charges).
Practical cost management in multi-party estate litigation: while Rein J urges coordination, the fine line between adequate representation of divergent beneficiary interests and duplication of costs remains. Later courts will need to explore how to control duplication while preserving each party’s ability to protect its rights.
The interplay between Trust Proceedings and Probate Proceedings: Rein J deferred amalgamation to a later hearing; further directions and any eventual amalgamation ruling will clarify how evidence should be marshalled across such parallel causes of action in contested estates.
International service and foreign defendants in probate litigation: the decision permits joining foreign beneficiaries, but procedural hurdles (service, language, attendance at trial) and thresholds for requiring security remain areas for development.
Practitioners should treat Rein J’s reasons as strong interlocutory guidance in NSW probate practice when executorial representation is absent, but expect fact-sensitive application and further refinement on procedural detail in later judgments.
Catchwords
(2) joinder of four potential beneficiaries resident in Poland ("the Four Polish Beneficiaries")(3) whether the Four Polish Beneficiaries should be required to provide security and in what form(2) the Four Polish Beneficiaries be joined as cross defendants to the Probate Proceedings: [94]52 ER 58
The Estate of Colleen McCullough [2018] NSWSC 1126
Thompson v Bella-Lewis [1997] 1 Qd R 429
Vernon v Watson
Judgment (15 paragraphs)
[1]
; Mekail v Hana [2019] NSWCA 197
Milillo v Konnecke [2009] NSWCA 109
Osborne v Smith (1960) 105 CLR 153
Poulos v Pellicer [2004] NSWSC 504
Ramage v Waclaw (1988) 12 NSWLR 84
Re the Estate of van den Berg [1999] ACTSC 82
Stainton v The Carron Company (1854) 18 Beav 146; 52 ER 58
The Estate of Colleen McCullough [2018] NSWSC 1126
Thompson v Bella-Lewis [1997] 1 Qd R 429
Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600
Whiteley v Klune: Re the Estate of Brett Whiteley Unreported Powell J, 19 March 1993
Texts Cited: Jacobs' Law of Trusts in Australia (Heydon and Leeming, Butterworths, 8th ed, 2016)
Mason and Handler, Succession Law and Practice (NSW) (Lexis Nexis, looseleaf)
Category: Principal judgment
Parties: Pawel Knap (First Plaintiff in the Probate Proceedings)
Ibdah Zabalawi (Second Plaintiff in the Probate Proceedings)
Katarzyna (aka Kasia) Duszyk (First Defendant in the Probate Proceedings)
Krysia Walker (Second Defendant in the Probate Proceedings)
[2]
Katarzyna (aka Kasia) Duszyk (Plaintiff in the Trust Proceedings)
Charles Emmanuel Morgan - Interim Administrator of the Estate (Defendant in the Trust Proceedings)
[3]
Anna Kapturkiewicz (Interested Party, one of the Four Polish Beneficiaries)
Romana Pawlus (Interested Party, one of the Four Polish Beneficiaries)
Barbara Pieton (Interested Party, one of the Four Polish Beneficiaries)
Elzbieta Juszczak (Interested Party, one of the Four Polish Beneficiaries)
Representation: Counsel:
Mr M Evans with Mr A Bailey (First Plaintiff in the Probate Proceedings and the Four Polish Beneficiaries)
Mr M Meek SC with Ms M Castle (Second Plaintiff in the Probate Proceedings)
Mr J Drummond (First Defendant in the Probate Proceedings and Plaintiff in the Trust Proceedings)
Ms L Nurpuri (Defendant in the Trust Proceedings)
Mr Foster (Czeslaw Kapturkiewicz)
[4]
Solicitors:
Knap Lawyers (First Plaintiff in the Probate Proceedings and the Four Polish Beneficiaries)
Drexler Litigation Lawyers (Second Plaintiff in the Probate Proceedings)
Delaney Lawyers (First Defendant in the Probate Proceedings and Plaintiff in the Trust Proceedings)
Fisher Nash Morgan (Defendant in the Trust Proceedings)
Mr J Olszanicki (Czeslaw Kapturkiewicz)
File Number(s): 2018/94300
2020/38962
Publication restriction: Nil
[5]
Judgment
Maria Zbrozek (née Kapturkiewicz) ("Maria") died on 2 July 2017, and these proceedings concern her estate ("the Estate"). The Court presently has before it a number of Notices of Motion which I shall describe in more detail after setting out the broad parameters of the matter.
On 13 April 2018 Mr Pawel Knap (as the First Plaintiff) and Ibdah Zabalawi (the Second Plaintiff) ("Ibdah") filed a Statement of Claim seeking a grant of probate to themselves of an informal will of Maria dated 15 August 2014. I shall refer to that document as "the 2014 Will" for convenience and without attributing to it a status which it ought not have. Those proceedings (2018/94300), which I shall refer to as "the Probate Proceedings", remain on foot and have not been determined. There are no executors named in the 2014 Will.
In the Probate Proceedings Katarzyna (aka Kasia) Duszyk ("Kasia") is the First Defendant and she has cross claimed seeking a grant of probate of an informal will dated 5 August 2013 (which I shall refer to for convenience as "the 2013 Will" again without attributing to it a status which it ought not have). The Second Defendant in those proceedings is Krysia Walker ("Ms Walker"). Ms Walker is named as executor in the 2013 Will. Ms Walker is also the daughter of Alicja Ulaszyn ("Alicja") a minor beneficiary under the 2013 Will, who was a friend of Maria's but is not related to her. On 21 August 2018, Lindsay J noted that Ms Walker recorded her consent to be appointed as executor or administrator of the Estate and "otherwise, that Ms Walker proposes to take no active part in the proceedings other than as a witness called by [Kasia]."
The residue of the Estate it is agreed has an estimated value of approximately $30M: see the 7 February 2020 Transcript at T12.33.
Mr Charles Emmanuel Morgan (solicitor) has been appointed by the Court as Interim Administrator of the Estate. Kasia has brought proceedings against Mr Morgan (2020/38962) claiming that Maria had promised to leave Kasia all of her Estate. I shall refer to these proceedings, launched in February this year, as "the Trust Proceedings" because that is the name by which they have been described by the parties. The Statement of Claim in the Trust Proceedings ("TSTOCL") was filed on 6 February 2020.
In the Trust Proceedings, Kasia asserts that there was a contract made between Maria and herself that Maria would make a will leaving the whole of her Estate to Kasia. The contract, Kasia alleges, was entered into between Maria and Kasia as a result of representations made by Maria to Kasia (and also to her mother, Ewa Duszyk ("Ewa")) in or about early 1997 and in 2004 (see paragraphs 24 and 32 of the TSTOCL), and to Ewa and her husband Marek Duszyk in or about late 1995 (when the Plaintiff was aged 9 years) (see paragraph 20 of the TSTOCL).
[6]
The Outcome of the Motions Dealing with Mr Knap's Removal
By her Notice of Motion (010 filed 21 January 2020) Kasia sought declarations that Mr Knap was in breach of his duties to Czeslaw and also the other beneficiaries as a result of conflicts and an order that Mr Knap cease acting in the proceedings for Ibdah, Romana, Anna K, Anna W, Kazimierz, Elzbieta, Barbara and Czeslaw. By the date of that motion Mr Knap had already ceased acting for Ibdah (see paragraph 37 above). By 29 June 2020 Mr Knap had filed a motion seeking to withdraw from the proceedings. The outcome of these motions is that he will be permitted to withdraw but on condition that he remains bound to meet any costs order that Ibdah is required to meet in so far as that order relates to the period in which he was a joint plaintiff with Ibdah. Mr Evans proposed a wording that reflects that result.
Mr Drummond asserts that Mr Knap has acted without authority and sought an order that effectively requires Mr Knap to pay Kasia's costs irrespective of the ultimate outcome of the case. I am not prepared to make such an order. Whilst I have reason to doubt that Mr Knap had a basis to be a plaintiff, I have not had to determine that point. If Kasia is successful in the Probate Proceedings and obtains an order that Ibdah must pay Kasia's costs Kasia will be able to recover all of her costs to the date of Mr Knap's departure from both Mr Knap and Ibdah. If Kasia is unsuccessful there may be an issue about whether Mr Knap should pay any costs in that circumstance.
In my view the wording that has been proposed by Mr Evans reflects the appropriate outcome of the motions. I have not determined that Mr Knap acted without authority and Kasia's Notice of Motion did not seek orders on that basis. Mr Knap's inability to continue acting arises from a potential conflict between his clients' interests and his own because he has a potential personal liability for costs.
[7]
Remaining Issues for Determination
The following matters remain therefore:
1. Should Ibdah be entitled to plead a defence to Kasia's cross claim which raises what she alleges are suspicious circumstances concerning the 2013 Will?
2. Should the Four Polish Beneficiaries be joined as defendants to Kasia's cross claim to plead a defence in the same form as Ibdah's proposed Amended Defence to Cross Claim?
3. If it is otherwise appropriate for the Four Polish Beneficiaries to be joined as defendants to Kasia's cross claim in the Probate Proceedings and to Kasia's claim in the Trust Proceedings, should they be required to provide security for costs for their joinder as cross defendants in the Probate Proceedings and as defendants in the Trust Proceedings, and if so, what form of security is appropriate?
4. Should Czeslaw:
1. be joined as a defendant in the Probate Proceedings;
2. be joined as a cross defendant to Kasia's cross claim in the Probate Proceedings;
3. be permitted to issue a cross claim in the Probate Proceedings in order to propound the 1991 Will; and
4. be permitted to be joined as a defendant in the Trust Proceedings?
1. Who should be the defendant(s) in the Trust Proceedings?
2. Should the Probate Proceedings and the Trust Proceedings be heard together with evidence in one to be evidence in the other ("the Amalgamation Issue")?
I will deal with these issues in a different order to that set out in [52].
[8]
The Amalgamation Issue
The Amalgamation Issue it was agreed will be the subject of a hearing on 3 and 4 November 2020, but as I shall explain there is some degree of overlap with other questions.
[9]
Czeslaw's Joinder
The issue of joinder of Czeslaw to both the Probate Proceedings and the Trust Proceedings is to be dealt with on 3 and 4 November 2020. A timetable for evidence and submissions relating to that issue has been set.
[10]
Who should be the defendants in the Trust Proceedings?
As I have noted earlier Mr Morgan has been named by Kasia as the Defendant to the Trust Proceedings. Mr Meek (supported by Mr Evans) draws attention to the fact that no leave was ever sought or application made by Kasia to justify that course. It is true that Mr Morgan was appointed as interim administrator until the Probate Proceedings has resolved which of the three wills would be the subject of a grant, but his appointment was in the following terms:
"Interim Administration - the Plaintiffs' Notice of Motion dated 23 May 2018
3 ORDER pursuant to s 73 of the Probate and Administration Act 1898 that Charles Emmanuel Morgan, Solicitor, of Suite 19, 1st Floor, "The Madison", 25 Hunter Street, Hornsby NSW, PO Box 1668, Hornsby Westfield, 1635, DX 9656 Hornsby be appointed as interim administrator of the personal estate and receiver of the real estate of the late Maria Zbrozek pending a grant of probate or letters of administration in these proceedings."
The appointment of Mr Morgan clearly is an appointment pendente lite under s 73 and is not an appointment pursuant to s 40 of the Probate and Administration Act 1898 (NSW), which includes appointments "ad litem": see Mason and Handler, Succession Law and Practice (NSW) (Lexis Nexis, looseleaf) at 1181.4.9. The former appointment permits the administrator to deal with and protect assets of the Estate but the latter permits the administrator to bring or defend proceeding on behalf of the Estate. Any decision against an administrator appointed ad litem will be binding on the Estate.
Mr Morgan, through his Counsel (and contrary to an earlier letter sent by him on 2 September 2020), does not contest that he does not have authority to defend Kasia's Trust Proceedings: see T94.16-21.
The Trust Proceedings are therefore irregular and will need to be reconstituted.
Where the Estate is represented by an executor it is the executor who is required to bring proceedings and defend proceedings on behalf of the Estate, and it is clear on the authorities that a beneficiary generally speaking has no right to be joined as a party to proceedings instituted or defended by the executor: see Jacobs' Law of Trusts in Australia (Heydon and Leeming, Butterworths, 8th ed, 2016) at 23.03, Alexander v Perpetual Trustees WA Ltd (2003) 216 CLR 109; [2004] HCA 7 at [55] per Gleeson CJ, Gummow and Hayne JJ.
[11]
Ibdah's Defence to Cross Claim in the Probate Proceedings
Mr Drummond accepts that Ibdah is entitled to defend the 2014 Will and therefore takes no issue with Ibdah's current defence to Kasia's cross claim. He asserts however that Ibdah should not be able to advance an attack on the 2013 Will. This is because, it was submitted, Ibdah has no interest in attacking the 2013 Will if the 2014 Will is not upheld to be the last will of Maria. Put another way, if Ibdah does not succeed on the 2014 Will she will obtain nothing if the 2013 Will is rejected and the 1991 Will is the only valid will of Maria.
In this connection Mr Drummond relies on authorities which describe the need for a person who wishes to challenge a document propounded by another person to have an interest or standing to do so: Ramage v Waclaw (supra); Re the Estate of van den Berg [1999] ACTSC 82 per Connolly M at [11]; Poulos v Pellicer [2004] NSWSC 504 per Windeyer J at [10]; In re Devoy [1943] St R Qd 137 per Philp J at 144; In the Will of William Henry Keepkie, Deceased [1960] Qd R 436 per Stable J at 441; Leitch v Dore [2005] QSC 069 [11]; and Whiteley v Klune: Re the Estate of Brett Whiteley Unreported Powell J, 19 March 1993.
As Mr Meek SC pointed out, the fact that Ibdah has been joined as a defendant by Kasia means that she is not an intervener, "outside busybody" or person with no interest, descriptions referred to in Poulos at [10] and In re Devoy at 144. Ibdah should, he submits, be able to raise whatever points she wants to in connection with her defence of Kasia's claim. Secondly, Mr Meek submits that contrary to Mr Drummond's contention the trial judge will not be first determining the validity of the 2014 Will without regard to the evidence adduced in relation to the 2013 Will as if they were quarantined separate matters. There is, I agree, support for a holistic approach to the totality of evidence adduced: see the discussion of Leeming JA in Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164] to [173] and it accords with my own experience: see The Estate of Colleen McCullough [2018] NSWSC 1126 in which there were also a number of documents advanced as the last will of the deceased. Mr Meek submitted that Kasia's credit was very much in issue for the reasons articulated in the proposed defence to cross claim and that the issue of the validity of the 2013 Will, and Kasia's credit could be significant in relation to the questions relevant to acceptance of the 2014 Will as the will of Maria.
[12]
The Four Polish Beneficiaries
The Four Polish Beneficiaries no longer seek to be joined as plaintiffs in the Probate Proceedings but rather only as defendants to Kasia's cross claim in those proceedings (and as defendants in the Trust Proceedings). Effectively their defence to Kasia's cross claim will be identical or very similar to Ibdah's defence to Kasia's cross claim.
Kasia contends that the Four Polish Beneficiaries are not entitled to be joined as defendants to her cross claim:
1. for the same reasons that Kasia resisted Ibdah's proposed amended defence;
2. because the Four Polish Beneficiaries have even less reason to attack the 2013 Will since they are beneficiaries under it; and
3. further that if those submissions are rejected the Four Polish Beneficiaries should be required to provide security for costs since they all reside in Poland and have been described by Ms Castle of Counsel, appearing for the Plaintiffs, as "impoverished": see T10.13 of the Transcript of 7 February 2020.
In relation to [85(1)] I have already explained why Ibdah should be entitled to ventilate "the suspicious circumstances" point. The same applies to the Four Polish Beneficiaries.
In relation to [85(2)] in this regard the Four Polish Beneficiaries are not in the same position as Ibdah. Although they will receive exactly the same benefits that Ibdah will receive if the 2014 Will is upheld, they will receive a similar benefit under the 2013 Will, whereas Ibdah will receive only a small bequest of $20K from the 2013 Will. The Four Polish Beneficiaries are entitled to regard their best hope of obtaining benefits as being under the 2014 Will rather than the 2013 Will, and to that end are entitled to attack the 2013 Will and also to support the 1991 Will because they believe that Czeslaw will be generous to them should he receive 100% of the residue of the Estate from the administrator of the 1991 Will. In this context I should say that Mr Drummond has identified a paragraph in an Affidavit of Czeslaw of 18 May 2018 in which Czeslaw expressed views about the ultimate distribution of the Estate (see paragraph 19) which would give support to that expectation. I should also note that I am aware that what has been described as a Deed of Family Arrangement was entered into between Czeslaw, the Four Polish Beneficiaries, other Polish Beneficiaries, and Ibdah but that document was not put into evidence on the motions currently before me by any party and I shall therefore say no more about it. I accept Mr Evans' additional submission that the Four Polish Beneficiaries (and I would add Ibdah) have a legitimate reason to resist Ms Walker being appointed executor if the 2013 Will were upheld.
[13]
Orders
I set out below the orders that will be made in the Probate Proceedings to reflect the conclusions to which I have come in respect of the various matters:
1. In relation to the Motion 011 of 6 July 2020 and Motion 010 of 21 January 2020, the Court makes the following orders:
1. ORDER pursuant to UCPR Part 6 r 29 that the First Plaintiff and the First Cross Defendant, Pawel Knap, be removed as a plaintiff and as a cross defendant in these proceedings.
2. ORDER that, notwithstanding the removal of Pawel Knap as a Plaintiff and as a Cross Defendant in these proceedings pursuant to Order 1 above, Pawel Knap remains subject to the same liabilities and entitled to the same rights with respect to the costs of these proceedings as he was subject to or entitled to as a plaintiff in these proceedings up to the date of this order.
3. ORDER pursuant to UCPR Part 6 r 27 that the following persons be joined to these proceedings as Cross Defendants in place of the said Pawel Knap:
1. Romana Pawlus of [address omitted] as the third cross defendant;
2. Anna Kapturkiewicz of [address omitted] as the fourth cross defendant;
3. Barbara Pieton of [address omitted] as the fifth cross defendant;
4. Elzbieta Juszczak of [address omitted] as the sixth cross defendant.
1. ORDER that, in the event that any personal costs order is made in these proceedings against any of the four persons added as Cross Defendants to these proceedings, the share of the Estate of the late Maria Zbrozek to which each Cross Defendant shall or may be entitled in these proceedings shall be charged in respect of any such costs to the intent that no distribution of any such share of the said estate shall take place in favour of the said Cross Defendants and each of them unless appropriate arrangements have first been made to provide security for any such costs as may be ordered.
1. In relation to Motion 009 of 17 October 2019, motion dismissed with no order as to costs.
2. In relation to Motion 008 (the FASTOCL motion), Ibdah has leave to file a Further Amended Statement of Claim in the form annexed to Mr Meek SC's submissions of 15 September 2020.
3. In relation to Motion 005 of 7 August 2020, Ibdah has leave to file an Amended Defence to Cross Claim in the form attached to the Affidavit of Dominika Walkowiak of 7 August 2020.
I set out below the orders that will be made in the Trust Proceedings to reflect the conclusions to which I have come in respect of the various matters:
1. In relation to who should be the defendants in the Trust Proceedings, I order Mr Morgan be removed as a Defendant and that Ibdah and the Four Polish Beneficiaries should be made Defendants to the Trust Proceedings. I order pursuant to Part 7 Rule 10(2)(a) of the UCPR that the proceedings should continue in the absence of a representative of the Estate of the Late Maria Zbrozek.
[14]
Costs
I have already dealt with the costs of Motion 009 (see [48(7)]) and the issue of what order as to costs should be made as part of Mr Knap's removal (see [50] to [51]). I will give an opportunity to Counsel to provide me with a copy of the costs orders for the various motions for which they contend (other than the matters already dealt with) having regard to the conclusions which I have reached, and submissions of no more than three pages in length by Monday, 26 October 2020 at 4:00pm.
[15]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 November 2020
Parties
Applicant/Plaintiff:
Estate of Maria Zbrozek; Katarzyna (aka Kasia) Duszyk
Respondent/Defendant:
Charles Emmanuel Morgan - Interim Administrator of the Estate of the late Maria Zbrozek
Orders made: (1) Pawel Knap removed as plaintiff and cross-defendant but remains liable/entitled in relation to costs accrued up to removal; (2) the Four Polish Beneficiaries (Romana Pawlus, Anna Kapturkiewicz, Barbara Pieton, Elzbieta Juszczak) joined as cross-defendants in the Probate Proceedings, with any estate share they obtain charged to secure adverse costs; (3) Ibdah granted leave to file a Further Amended Statement of Claim and to file an Amended Defence to Cross Claim; (4) in the Trust Proceedings Charles Morgan removed as defendant and Ibdah and the Four Polish Beneficiaries joined as defendants, with proceedings to continue in absence of an estate representative; (5) interim orders on costs reserved for submissions.
Kasia alleges that she came to Australia at the age of 18 and from May 2005 commenced living with Maria as a result of the promises and representations made by Maria.
Maria and her late husband, Julian Zbrozek ("Julian"), had no children. Julian emigrated to Australia from Poland in 1947. In the 1970s he visited Poland, met Maria there, married her, and they returned to Australia shortly thereafter. Julian had been married prior to marrying Maria, but both wives had died and there had been no offspring from those earlier marriages. Julian died in 1990 and Maria inherited his whole Estate.
In 1991 Maria made a will by which she appointed Mr George Skarbek and Mr Peter Carey Prior her executors ("the 1991 Will"). Mr Prior was her solicitor and he had drafted the 1991 Will. The 1991 Will contained a bequest to the Heart Foundation of Australia ($100K), a bequest to Maria's goddaughter Janina Przybytek ("Janina") ($150K), and the entire residue of the Estate to her nephew Czeslaw Kapturkiewicz ("Czeslaw") (the son of one of Maria's brothers). Czeslaw, by the way, had come to Australia shortly after Julian's death at Maria's invitation but his sojourn here was relatively short and he returned to Poland.
In 2013, Maria made contact with a new solicitor Mr Ben Johnston of Fidelity Legal and she had further contact with him again in 2014. Mr Johnston passed away in February 2017 and his wife Ms Nerida Johnston was appointed by the Law Society to manage and wind up the practice.
Within the file of Fidelity Legal are a number of documents bearing dates in 2013 and 2014, and draft wills prepared by Mr Johnston. There is also an authority apparently signed by Maria by which she instructs Mr Prior to provide to Mr Johnston all documents held by Mr Prior's firm on her behalf.
One of the documents in the Fidelity Legal file is the document which the Plaintiffs' propound as the 2014 Will. That document, in the handwriting of Ibdah (I think it is agreed), bears a signature which appears to be that of Maria. There is a space for the naming of proposed executors, but no names of executors are contained in the document. There are two other documents in that file which are very similar to the 2013 Will. I shall refer to them later in these reasons.
Maria was at all relevant times until her death living at her property in Normanhurst ("the Normanhurst Property")
The 2014 Will, apart from specific limited bequests including a $150K legacy to the Heart Foundation of Australia, $150K to the Catholic Queen of Peace Church, and $150K to Janina (Maria's goddaughter), provides as follows:
1. 50% of the residue to be allocated to Czeslaw;
2. 50% of the residue to be divided between:
1. Stanislawa Kapturkiewicz ("Stanislawa");
2. Kazimierz Kapturkiewicz ("Kazimierz");
3. Romana Pawlus ("Romana");
4. Anna Kapturkiewicz ("Anna K");
5. Malgorzata Szopa ("Malgorzata");
6. Anna Wasowicz (née Kapturkiewicz) ("Anna W");
7. Barbara Pieton ("Barbara");
8. Elzbieta Juszczak ("Elzbieta");
9. Ibdah; and
1. for the Normanhurst Property (said to be valued at $2.5M) and two vehicles to be provided to Kasia.
The relationship between Maria and each of the persons named in the 2014 Will is as follows:
1. Czeslaw is the son of Wladyslaw Kapturkiewcz ("Wladyslaw"), Maria's brother.
2. Anna W, Barbara, Elzbieta and Janina are sisters of Czeslaw. Anna K and Romana are cousins of Czeslaw. Janina as I have mentioned is also the goddaughter of Maria.
3. Ewa is a daughter of Stanislaw Kapturkiewicz ("Stanislaw"), another brother of Maria's. Stanislaw passed away in 2014.
4. Kasia is a daughter of Ewa. She is therefore a grandniece of Maria.
5. Ibdah was employed as bookkeeper by Maria from the 1990s until Maria's death in 2017.
6. Czeslaw, Anna W, Barbara, Elzbieta and Janina are children of Wladyslaw who was a brother of Maria
7. Romana and Anna K are daughters of Piotr Kaptwricz, another brother of Maria.
The 2013 Will which Alicja claims Maria handed to her immediately following its execution on 5 August 2013 and which she handed to Kasia at Maria's funeral on 25 July 2017 (a copy of which is found at CB3 765-768), aside from a number of limited specific bequests such as $150K to the Heart Foundation of Australia and $150K to Janina, a $20K legacy to Alicja and a $20K legacy to Ibdah, provides the following:
1. 50% of the residue to be allocated to Czeslaw;
2. 50% of the residue to be divided between:
1. Stanislaw, noting that if he was to predecease Maria, then his share would go to Stanislawa (his wife);
2. Kazimierz;
3. Romana;
4. Anna K;
5. Kasia;
6. Malgorzata;
7. Elzbieta;
8. Barbara;
9. Ewa; and
1. for the Normanhurst Property (said to be valued at $2.5M) and two vehicles to be provided to Kasia.
It will be observed that by the 2013 Will Ewa is included as a beneficiary (as to a one ninth share of 50% of the residue) and that by the 2014 Will she is not. By the 2013 Will Kasia receives not only the Normanhurst Property but also a one ninth share of 50% of the residue whereas under the 2014 Will Kasia receives only the Normanhurst Property. It will be observed that by the 2014 Will Ibdah is to receive one ninth share of 50% of the residue but by the 2013 Will she is to receive only a small bequest of $20K. Anna W is to receive no share of residue in the 2013 Will but does receive a one ninth share of 50% of the residue in the 2014 Will.
It can thus be seen that Ibdah and Anna W have a strong interest in propounding the 2014 Will and that Kasia has a strong interest in propounding the 2013 Will (particularly having regard also to her mother being included as a beneficiary in the 2013 Will but not in the 2014 Will).
It will also be observed that Czeslaw's share of residue is significantly reduced if either the 2013 Will or the 2014 Will is held to be valid. The executors of the 1991 Will have not been joined to the proceedings, and Czeslaw has not been joined either. There is correspondence from Mr Prior, one of the 1991 Will executors, in which he foreshadows making an application for probate of the 1991 Will but no application was in fact made.
Four of the beneficiaries under the 2013 Will and the 2014 Will are seeking to be joined to the proceedings (the details of this proposed joinder are explained later in these reasons). The four seeking to be joined are Anna K, Romana, Barbara, and Elzbieta and I shall refer to these potential beneficiaries in the balance of these reasons as "the Four Polish Beneficiaries".
In addition to the Probate Proceedings and the Trust Proceedings there has been another set of proceedings involving the Estate. Those proceedings were brought by a Mr Robert Noel Wellman against the Estate (Robert Noel Wellman v The Personal Representative of the late Maria Zbrozek, 2018/200053) ("the Wellman Proceedings"). Mr Wellman claimed that in the course of her life Maria made oral promises to him that, in return for Mr Wellman carrying out maintenance and assisting Maria in the management of a number of the properties, she would ensure that upon her death there would be sufficient funds from her Estate allocated to allow Mr Wellman to have a secure home for himself and his son.
Justice Hallen made an order appointing Kasia as the defendant for the purpose of those proceedings. For some reason which is not at all clear Mr Knap and Ibdah were named as defendants as was Mr Morgan. The defence of the proceedings was conducted by Kasia's solicitors and settlement was reached with Mr Wellman by which he was to receive an amount of $35K, including $20K for his costs. Kasia's and Mr Morgan's costs were agreed to be paid out of the Estate on an indemnity basis.
The only relevance of the Wellman Proceedings at present is that Kasia was appointed to represent the Estate and the Notional Estate in those proceedings pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
There is no dispute that neither the 2013 Will nor the 2014 Will are wills executed in proper form. Kasia contends that the 2013 Will should be accepted as the last will of Maria. Until recently, Ibdah and Mr Knap have not challenged the validity of the 2013 Will, but rather advanced the 2014 Will as a later valid will of Maria.
As I have mentioned there are two documents in the Fidelity Legal file which are similar to but not identical to the 2013 Will. The first is a document bearing the date 15 August 2013. It bears on several pages what appears to be Maria's signature or initials and is identifiable as FL5 which is part of NAJ-66 of the Exhibit to Ms Johnston's Affidavit of 23 April 2018 (I shall refer to this document as "FL5"). FL5 does not contain any reference to Ewa. The second document is at Exhibit NAJ-7 of Ms Johnston's Affidavit of 23 April 2018 ("NAJ-7") and is very similar to FL5 but it bears the date 5 August 2013. Like FL5, NAJ-7 does not refer to Ewa. There are other differences between the three documents, i.e. the 2013 Will, FL5 and NAJ-7. The provenance of NAJ-7 is known because it was sent by Ms Walker to Ms Johnston on 5 July 2017 by email, following a conversation between Ms Johnston and Ms Walker. The terms of that conversation are in dispute: see Annexure A of the Affidavit of Ms Johnston of 27 September 2018 and see the Affidavit of Ms Walker of 31 August 2018 at paragraph 118. The conversation between Ms Walker and Ms Johnston in turn followed a discussion that Kasia had with Ms Johnstone on 4 July 2017 (see paragraph 11 of Ms Johnston's Affidavit of 23 April 2018).
There is yet another document that is similar to the 2013 Will. It is a document that is undated and unsigned and a copy of it is apparently exhibited to Ms Walker's Affidavit of 31 August 2018 as KW1 at 54-57 and found, it was agreed, at CB1 657-660. Ms Walker describes it as a draft document that she prepared after Maria rang her on the same day that Maria, on Ms Walker's evidence, had signed the 2013 Will. According to Ms Walker, Maria told her that she wanted to substitute Kasia as the main beneficiary in lieu of Czeslaw with the consequence that Kasia would receive 50% of the residue and Czeslaw would receive a one ninth share of 50% of the residue. Ms Walker says that she made the changes on the draft and sent that draft to Maria with an email telling her she should go and see her solicitor about it (see paragraph 101 of Ms Walker's Affidavit of 31 August 2018).
It will be observed that in the Probate Proceedings Kasia advances a claim that the 2013 Will and not the 2014 Will should be upheld, but she also by the Trust Proceedings contends that Maria promised to bequeath her entire Estate to her. The conjunction of these two disparate claims gives rise to a serious question as to whether or not the Trust and Probate Proceedings should be heard together as Ibdah, supported by the Four Polish Beneficiaries, contends. This is a course strongly opposed by Kasia.
I turn now to the Probate Proceedings. In the Amended Statement of Claim filed 11 May 2018 ("ASTOCL") Mr Knap and Ibdah seek:
"1. A DECLARATION that the document delivered to the court by Ms Nerida Johnston on Monday 7 may 2018, being a document of some 7 pages dated 15 August 2014 partly handwritten and partly printed and signed by the late Maria Zbrozek forms and/or constitutes the last will of the late Maria Zbrozek of 17 Calga Avenue, Normanhurst NSW 2076 in the terms of s 8 of the Succession Act 2006 (NSW).
2. AN ORDER that Letters of Administration with the will annexed, being the informal will of some 7 pages made by the late Maria Zbrozek on 16 August 2014, being the document of some 7 pages dated 15 August 2014 partly handwritten and partly printed and signed by the late Maria Zbrozek delivered to the court by Ms Nerida Johnston on Monday 7 May 2018, be granted to the plaintiffs, Pawel Knap and Ibdah Zabalawi, in solemn form."
The ASTOCL pleads that Maria dictated the contents of the document to Ibdah and that Maria, in the company of Ibdah, took the document to Mr Johnston "and there signing the said will in the presence of the second plaintiff and the said Ben Johnston" (see paragraph 6 of the ASTOCL).
Paragraph 12 of the ASTOCL is in the following terms:
"The first plaintiff is a solicitor of this Court and was born in Poland and is fluent in the Polish language and is the attorney, under a power of attorney, of Romana Pawlus and Anna Kapturkiewicz, both nieces of the deceased being the daughters of the late brother of the deceased, Piotr Kapturkiewicz, who passed away in 2004."
Paragraph 18 of the ASTOCL is in the following terms:
"The plaintiffs hold signed consents in support of their application for a grant of letters of administration with the will annexed, being the will made by the deceased on 15 August 2014, of the estate of the deceased from the following residuary beneficiaries:
(a) Romana Pawlus;
(b) Anna Kapturkiewicz;
(c) Czeslaw Kapturkiewicz;
(d) Kazimierz Kapturkiewicz;
(e) Anna Wasowicz (nee Anna Kapturkiewicz);
(f) Elzbieta Juszczak;
(g) Barbara Pieton; and
(h) Ibdah Zabalawi."
By her Defence to the ASTOCL Kasia asserts, inter alia, that the 2014 Will was not a will for various reasons set out in paragraph 6 of the Defence, including the claim that Maria made known to Ewa (Kasia's mother) and to Alicja that Ibdah was pressuring Maria to make greater provisions for her in Maria's will, and that Ibdah was "stealing from her", that no copy of the 2014 Will has been located in the papers of the Deceased, and that the signatures on the draft informal will "is not the signature of the Deceased". Kasia relies also on the evidence of Ms Johnston concerning her late husband's practice in relation to wills. Kasia asserts that by reason of all the matters pleaded (including those to which I have specifically referred) there arise and exist suspicious circumstances regarding both the preparation and the purported execution of the document.
Kasia's Defence also alleges that as and from early August 2014 and prior to the preparation of the draft informal will, Ibdah knew or ought reasonably to have known that Maria:
"…was suffering from progressive:
(a) short term memory loss;
(b) progressive cognitive loss;
(c) delirium;
(d) specific and chronically constructed paranoid ideation…"
and that Maria was viz à viz Ibdah in a vulnerable state and at a special disadvantage and that Ibdah was in a position of psychological ascendency and that Ibdah exercised improper advantage thereby to obtain the preparation and purported execution by Maria of the 2014 Will amounting to the exercise of undue influence.
The Plaintiffs in the Probate Proceedings have obtained a forensic report from a Dr Steven J Strach that apparently supports their contention that the signature purporting to be that of Maria on the 2014 Will is that of Maria. Kasia has obtained a forensic report from Mr Christopher Anderson to the opposite effect. No forensic examination has been undertaken of the 2013 Will and indeed it was provided to Dr Strach and Mr Anderson as one of the specimen signatures of Maria.
By paragraph 19 of the Defence in the Probate Proceedings Kasia admits that her solicitors have notified the Plaintiffs that she proposes to propound the 2013 Will as the last will and testament of Maria.
By her cross claim in the Probate Proceedings filed 13 June 2018 Kasia seeks declarations concerning the 2014 Will and the 2013 Will consistent with the claims made in her Defence, and seeks an order that probate of the 2013 Will be granted to her.
On 30 April 2019 Mr Knap filed a Notice of Intention to File a Notice of Ceasing to Act for Ibdah. On 11 March 2020 a Notice of Change of Solicitor was filed for Ibdah and since then she has been represented by Drexler Litigation Lawyers.
On 7 February 2020, three motions in the Probate Proceedings were set down for hearing before me on 16 and 17 September 2020, namely:
1. Notice of Motion of Mr Knap and Ibdah filed 13 September 2019 ("the 008 Motion") (the FASTOCL motion);
2. Notice of Motion 009 filed 17 October 2019 ("the 009 Motion") (the administration motion); and
3. Notice of Motion 010 filed 21 January 2020 ("the 010 Motion") (Kasia's declarations motion).
There are additional motions which the Plaintiffs in the Probate Proceedings seek to ventilate namely the Notice of Motion 002 filed 10 June 2020, amended on 29 June 2020, the Notice of Motion 011 filed 10 June 2020, amended on 6 July 2020, and Ibdah's Motion 005 filed 7 August 2020.
Motions 002/011 are motions brought by Mr Knap on his own behalf and on behalf of the Four Polish Beneficiaries. By it (as amended) Mr Knap seeks to be removed as a plaintiff and cross defendant and to be replaced by the Four Polish Beneficiaries. Kasia objected to such removal asserting that Mr Knap should have filed a Notice of Discontinuance. The key underlying issue in dispute is the question of costs, since Kasia's solicitors claim that Kasia has incurred in excess of $700K of legal fees in the Probate Proceedings.
By Notice of Motion 005, Ibdah sought to file an Amended Defence to Kasia's cross claim. That Amended Defence pleads that Ibdah does not admit that the 2013 Will as propounded by Kasia is an informal will of Maria, and asserts the deceased "lacked knowledge or approval for the 2013 document" and that the making of the 2013 Will "was affected with suspicious circumstances" which are there detailed: see paragraph 3(e)(i)-(xxii) of the proposed Amended Defence. Mr Knap no longer seeks to be part of the application because he seeks to be removed as a party in the Probate Proceedings.
By the Motion 008 the Plaintiffs sought leave to file a Further Amended Statement of Claim ("the proposed FASTOCL"). The proposed FASTOCL advanced by that motion seeks alternative declaratory relief namely that the 1991 Will constitutes the last will of Maria and that letters of administration be granted to Mr Morgan, but a different version was advanced at the hearing on 16 September 2020. Mr Knap again no longer seeks to be part of that amendment because he seeks to be removed as a party in the Probate Proceedings.
By Motion 010 in the Probate Proceedings, Kasia seeks a declaration that Mr Knap has since 13 April 2018 been in breach of his duty of loyalty to Czeslaw by seeking to propound the 2014 Will, and that by filing the motion of 13 September 2019 (i.e. Motion 008) and attaching the 2013 Will Mr Knap has breached his duty of loyalty to each of the Four Polish Beneficiaries and to Kazimierz, another sibling of Maria's, because the propounding of the 1991 Will prefers the interest of Czeslaw to the other Polish Beneficiaries.
In the Trust Proceedings there are two Notices of Motion which were filed in June and August:
1. The first motion, brought on behalf of Romana, Anna K, Barbara and Elzbieta, seeks an order that they be joined as second to fifth defendants in the Trust Proceedings.
2. The second motion, that of Ibdah, seeks an order that she be joined as the sixth defendant to the Trust Proceedings and that the Trust Proceedings and the Probate Proceedings be heard together with evidence in one to be evidence in the other.
There are in the Probate Proceedings three possible outcomes:
1. The Court upholds the 2014 Will.
2. The Court upholds the 2013 Will.
3. The Court upholds the 1991 Will.
It was agreed by all parties that the 1991 Will is a valid will and that if neither the 2013 Will or the 2014 Will are valid then the 1991 Will is the last will and testament of Maria and should be subject of a grant of probate or administration.
The matter was listed for hearing on 16 to 17 September 2020. In the Probate Proceedings Mr M Evans of Counsel with Mr A Bailey appeared for the First Plaintiff and Mr M Meek SC with Ms M Castle appeared for the Second Plaintiff. Mr J Drummond of Counsel appeared for Kasia, i.e. the First Defendant in the Probate Proceedings and the Plaintiff in the Trust Proceedings. There was no appearance for Ms Walker, the Second Defendant in the Probate Proceedings who, as I have noted, has effectively filed a submitting appearance. Ms L Nurpuri of Counsel appeared for Mr Morgan (the Defendant in the Trust Proceedings) and Mr G Foster of Counsel (instructed by Mr J Olszanicki) appeared for Czeslaw.
At the hearing on 16 to 17 September 2020 there were a number of developments:
1. Mr Knap accepted that if he withdrew from the proceedings there would need to be an acknowledgment by him that his departure would not impact upon such liability as he might have for costs incurred by Kasia to the date of exit. It was agreed that a document would need to be prepared which reflected that acceptance and Mr Evans submitted that it should equally preserve Mr Knap's rights, as a Plaintiff, to costs.
2. Mr Knap accepted that he should not continue to act for the Four Polish Beneficiaries in the proceedings because of the potential conflict between his interest as a person potentially liable for costs and the interests of the Four Polish Beneficiaries.
3. Czeslaw sought to be joined as a defendant in the Trust Proceedings and then as a defendant in the Probate Proceedings. He also seeks to cross claim, propounding the 1991 Will, in the Probate Proceedings.
4. The Court was informed that Mr Prior has renounced probate and does not seek to have any involvement in the case. Later a formal Notice of Renunciation was provided to the Court. It appears likely that Mr Skarbek has died. More information on that will be sought by Kasia's solicitors but I shall proceed on the basis that that is correct, and in any event, if he is still alive Mr Skarbek certainly has taken no steps in relation to the 1991 Will or the Estate.
5. The Four Polish Beneficiaries wish to be joined only as cross defendants to Kasia's cross claim and no longer seek to be joined as plaintiffs in the Probate Proceedings. They continue to wish to be joined as defendants to the Trust Proceedings.
6. Kasia accepts that Ibdah can file a Further Amended Statement of Claim in the form annexed to Mr Meek's submissions of 15 September 2020 - that document unlike the document attached to the Notice of Motion does not seek to propound the 1991 Will in the alternative.
7. I held that the costs of Motion 009 by which Mr Knap and Ibdah sought an interim distribution on behalf of Czeslaw should be the parties' costs in the cause because the commencement of the Trust Proceedings by Kasia had had an impact upon the relief sought in the motions and it was not necessarily inappropriate for the application to be made at the time the motion was filed, and also because it is not appropriate to venture into the question of whether the orders sought could or would have been made.
8. It became apparent that the Trust Proceedings are not properly constituted because Kasia has joined Mr Morgan as a defendant when he has been appointed as administrator on a very limited basis. The point was made by Mr Meek and was accepted by Mr Morgan through his Counsel. This then led to a submission by Mr Drummond that Mr Morgan's powers should be extended and he be appointed administrator pendente lite in the Trust Proceedings. Mr Meek proposed that Ibdah be appointed to that role. Mr Evans contended that if Ibdah, Czeslaw and the Four Polish Beneficiaries were all permitted to be defendants in the Trust Proceedings an order could be made that the Estate would be bound by the outcome so that no one need be appointed to represent the Estate for the Trust Proceedings. Mr Drummond contended that if Mr Morgan was appointed pendente lite to defend the Trust Proceedings then Ibdah, the Four Polish Beneficiaries and Czeslaw would not need to be joined.
There are cases however in which a beneficiary has been held entitled to bring proceedings notwithstanding the existence of an executor and even the refusal of the executor to sue a third party: Ramage v Waclaw (1988) 12 NSWLR 84, approved in Alexander, itself is an example of this Court finding that there were "special circumstances" sufficient to entitle the Plaintiff to sue the third party even though the executor did not wish to bring such proceedings. In Stainton v The Carron Company (1854) 18 Beav 146; 52 ER 58, Sir John Romilly MR referred to the Plaintiffs in that case as being "most materially interested in the due enforcement of these claims" which "may be most seriously prejudiced, if they are abandoned or not duly prosecuted." His Honour said at 63 summing up the cases:
"…the persons interested in the estate of the testator, not being the. legal personal representatives, will not be allowed to sue persons possessed of assets belonging to the testator, unless it is satisfactorily made out that there exist assets which might be recovered, and which, but for such suit, would probably be lost to the estate."
These dicta focus on claims to be brought on behalf of the Estate but they must apply equally, in my view, to the defence of claims against the Estate.
As Mr Meek points out the present is not a case where executors have been appointed under a will and are acting to defend the Estate. There are no executors named in the 2014 Will and the executors in the 1991 Will have not taken up their appointment. The named executor in the 2013 Will (Ms Walker) has effectively filed a submitting appearance and indicated she will not take an active part in the proceedings. In such circumstances it is wholly appropriate that beneficiaries who will be deprived of any interest that they may have if Kasia's claims are upheld should be able to resist those claims. They are natural defendants to Kasia's Trust Proceedings and, I would add, necessary parties to her claim in the absence of an executor or administrator appointed by the Court. It is true that Ibdah, Czeslaw and the Four Polish Beneficiaries do not constitute all of the beneficiaries under all of the wills but notice has been given to all beneficiaries (see the Affidavit of Mr Knap of 5 June 2018). If other beneficiaries have not sought to appear, then they do not need to be joined: see Supreme Court Rules 1970 (NSW) Part 78 Rule 57, and see Osborne v Smith (1960) 105 CLR 153 at 158-159 per Kitto with whom Menzies and Windeyer JJ concurred.
Mr Morgan, as I have explained, has not been validly joined as a defendant and, as Mr Meek submitted, that joinder for which no directions of the Court were ever obtained or even sought should not be treated as the presumed default position, as it were.
The starting point then is to determine who are the proper parties to Kasia's claim. If there were an executor named in each of the 1991 Will, the 2013 Will and the 2014 Will who was prepared to take up the position and actively defend the Estate from Kasia's claims each would be a natural defendant to the Trust Proceedings. There are no executors under the 1991 Will who wish to promote the 1991 Will, and defend the Estate. There are no executors named in the 2014 Will. The executor of the 2013 Will does not wish to actively participate in the proceedings and there is an obvious problem with Kasia joining Ms Walker as a defendant in the Trust Proceedings given her support of Kasia in the Probate Proceedings, which is linked to Mr Evans' point as to his clients' concern as to the possible appointment of Ms Walker should Kasia succeed in her claim in relation to the 2013 Will.
Against this background there emerge as natural defendants all of the beneficiaries of the 1991 Will, the 2013 Will and the 2014 Will. Czeslaw is a beneficiary under all three wills. The Four Polish Beneficiaries and Ibdah are beneficiaries under both the 2013 and the 2014 Will, although of course Ibdah's bequest is very small under the 2013 Will. A number of other beneficiaries, including the Heart Foundation of Australia, the Catholic Queen of Peace Church and Janina would be adversely affected if Kasia was successful in the Trust Proceedings. I am uncertain of the extent to which all potential beneficiaries have been notified of the Trust Proceedings and that will need to be clarified, but what is known is that Ibdah, the Four Polish Beneficiaries and Czeslaw all seek to be joined as defendants to the Trust Proceedings. They are all persons who have a clear interest in resisting Kasia's claim, a matter of importance where there is no personal representative of the deceased (see Government Insurance Office (NSW) v Johnson [1981] 2 NSWLR 617 at 623E per Hutley JA). Prima facie, in my view, they ought to be made defendants to the Trust Proceedings.
I say prima facie because Kasia resists joinder of any of Ibdah, the Four Polish Beneficiaries or Czeslaw as defendants to the Trust Proceedings. In so far as the resistance to Czeslaw's joinder is also based on matters specific to him, those matters will be dealt with at the hearing of his motions on 3 and 4 November 2020. I shall now deal with the issue that affects all three groups.
Mr Drummond asserts that neither Ibdah nor the Four Polish Beneficiaries (or Czeslaw) even if otherwise entitled to be defendants, should represent the Estate - this role he contends should be given to Mr Morgan. Mr Drummond seemed at the hearing on 16 and 17 September to accept that Mr Morgan has not been appointed to represent the Estate for the purposes of the Trust Proceedings (see T97.49-98.13, T109.48-50, T122.45-123.1, T125.29-38), but in his submissions of 21 September 2020 he appeared to resile from that submission.
I will endeavour to summarise Mr Drummond's contention as to why Mr Morgan should be the only defendant in the Trust Proceedings:
1. Mr Morgan is already the Defendant in the Trust Proceedings.
2. Mr Morgan is someone whom Ibdah, the Four Polish Beneficiaries and Czeslaw want to have appointed as administrator should either the 2014 or the 1991 Will be found to be Maria's last testament.
3. Mr Knap, Ibdah and the Four Polish Beneficiaries have no complaints concerning Mr Morgan's handling of the Estate to date and supported his appointment as interim administrator.
4. Mr Morgan is wholly independent of any of Kasia, Ibdah, the Four Polish Beneficiaries and Czeslaw.
5. Mr Morgan is located in Sydney and it can be assumed will conduct a defence of the Estate in an appropriate manner.
6. Mr Morgan's appointment as administrator ad litem will mean that only one set of costs will be incurred, an important matter in relation to estate matters: see Milillo v Konnecke [2009] NSWCA 109 [109] to [128].
7. Mr Morgan's appointment will mean that the Estate will be bound by the outcome in the proceedings.
8. None of Ibdah, the Four Polish Beneficiaries or Czeslaw were present when Maria made the representations that Kasia claims were made to herself and her mother - so there is no evidence that these persons can give in the Trust Proceedings.
I shall deal with each of these points seriatim:
1. As I have explained, Mr Morgan has been appointed in effect as administrator pendente lite - he has not been appointed administrator ad litem to defend these proceedings. His appointment to manage the Estate property was appropriate but his joinder as defendant of these proceedings has not been authorised.
2. Mr Morgan's suitability to be appointed as in effect receiver/ manager of the Estate's assets is not in issue. There is no inconsistency in Ibdah and the other beneficiaries contesting that they should be the defendants in the Trust Proceedings.
3. Point 3 (set out in [69(3)] above) is also dealt with in (2) above.
4. This assertion is correct, but the Defendants do not need someone independent of themselves since they collectively have a shared interest in defending Kasia's claims.
5. This assertion is correct, but the proposed defendants have $30M collectively as reasons to actually defend Kasia's claim.
6. This is an important consideration and I will say more about it below.
7. An order made pursuant to r 7.10(2)(a) of the UCPR will be as effective in binding the Estate by the result as one made under r 10(2)(b): see r 7.10(3) of the UCPR.
8. Accepting that none of the persons seeking to be joined were present at meetings between Maria and Ewa and Kasia does not mean they could not have evidence that is relevant to Kasia's claims but, in any event, their defence of the Trust Proceedings is likely to raise far wider issues than calling evidence from someone who was present at the time of the alleged representations.
I regard the prospect of the additional costs brought about by having three sets of defendants rather than one as an important matter in favour of the appointment of Mr Morgan (or any other person as administrator ad litem for that matter). There are, however, a number of factors which either reduce the significance of that matter or which are countervailing considerations, namely:
1. Ibdah stands to lose approximately $1.6M if her claim under the 2014 Will is successful and Kasia's claim in the Trust Proceedings succeeds. The Four Polish Beneficiaries will each lose the same amount and collectively that is approximately $6.6M. Czeslaw stands to lose either $15M or $30M depending on which of the three wills is upheld. These are very significant amounts of money and, for reasons which I will explain below, Ibdah and the Four Polish Beneficiaries should be defendants in the Probate Proceedings. They are parties with a very great interest in resisting Kasia's claim. Czeslaw even more so.
2. Whilst Ibdah, the Four Polish Beneficiaries and Czeslaw have a common interest in defeating Kasia's claim, Ibdah's interest in the litigation is likely to be circumscribed if she comes to believe that the prospects of success on the 2014 Will are limited. In a similar fashion the interests of the Four Polish Beneficiaries will be lessened if they come to a similar conclusion as to the prospects of the 2014 Will, and maintain their position in relation to the invalidity of the 2013 Will.
3. The Four Polish Beneficiaries all speak Polish and wish to utilise the services of a solicitor who is fluent in Polish as well as English. If Mr Morgan were to be the administrator ad litem he would very likely need to engage either a solicitor who speaks Polish or more likely a solicitor who will have to engage a person proficient in the Polish language (and probably a certified interpreter). He would need to update the beneficiaries constantly in relation to developments in the proceedings. If it were more convenient for the administrator to communicate with local solicitors then the beneficiaries would need to retain lawyers without the prospect of recovery of costs.
4. There is a possibility of conflict between the interests of the three groups of defendants. An administrator ad litem may be forced to seek judicial advice to deal with those conflicts. On the other hand, if each group is separately represented they will be able to advance their own position should any conflict arise.
5. If mediation is to be ordered in these proceedings it would be highly desirable that each of the groups were present as parties at any mediation.
6. Ibdah and the Four Polish Beneficiaries will be defendants and represented in the Probate Proceedings. If Czeslaw is successful in his application he would also be a party to the Probate Proceedings and it would make sense that these same parties be the parties to defend the Trust Proceedings.
7. Given the absence of any executor of the 1991 Will or the 2014 Will and the issues concerning Ms Walker in relation to the 2013 Will, there is reason to ascribe importance to the selection of the defendants who have a real interest resisting Kasia's claim in the Trust Proceedings.
8. Mr Morgan as the administrator pendente lite has only to protect and administer the assets of the Estate - he is not in conflict with any of the potential beneficiaries, including Kasia. He would be if he were the party actively resisting Kasia's Trust Proceedings.
I would add that if I were to conclude that the Probate Proceedings and the Trust Proceedings should be heard together there would be an additional reason for Ibdah and the Four Polish Beneficiaries (and Czeslaw) to be the parties involved in both.
On the issue of costs I make these further observations. I think that it is at least a possibility that Ibdah and the Four Polish Beneficiaries (and Czeslaw if joined) might decide that their interests are adequately protected by the engagement of one firm of solicitors and one team of barristers. To the extent that each group is separately represented attention will need to be given to the extent to which cross examination will be duplicated and therefore not allowed. It would make sense that the efforts of the Defendants' lawyers in the Trust Proceedings are coordinated wherever possible with a view to reducing the costs involved. All parties have an interest in them so doing - so for example I would anticipate the order for the Court Book to require the Defendants' representatives to meet before advising the Plaintiff of what is required for the Court Book. I mention these matters as examples of how the costs of the proceedings might be kept within reasonable bounds. The same approach would apply to the Probate Proceedings.
Mr Meek also pointed out that the conduct of Kasia after 2013 and more particularly shortly before Maria's death and after Maria's death will be significant matters and matters of which the Court will need to be appraised and form a view - referring in this context to Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 per Burchett AJ, see [2] to [9] and [23] where his Honour refers to authority that events after the making of the will may be relevant to the issue of suspicious circumstances and not simply, as McPherson JA in dissent in Thompson v Bella-Lewis [1997] 1 Qd R 429 at 451 held, that generally the circumstances giving rise to suspicion must relate to preparation of the will. I very much doubt that Ibdah will be precluded from drawing attention to conduct occurring after the date of execution of the 2013 Will. That links to another matter which is that if Kasia's credit in relation to the 2013 Will is successfully impugned this is likely to have a significant effect on Kasia's claim in the Trust Proceedings. Ibdah and the Four Polish Beneficiaries have a legitimate interest not only in seeking to establish that Kasia's 2013 Will is not a genuine will but in testing the evidence advanced by Kasia to support that will.
Mr Evans, on behalf of the Four Polish Beneficiaries, adopts Mr Meek's submissions and added a further element to the picture which is interconnected with the Trust Proceedings. He pointed out that the only executor named in the 2013 Will is Ms Walker and that she has filed, effectively, a submitting appearance but has sworn an affidavit dated 31 August 2018 in support of Kasia's cross claim. That affidavit explains how the 2013 Will was created and the conversations Ms Walker had with Maria, and it also provides details of a conversation she had with Ms Johnston on 5 July 2017 preceding the sending by email of NAJ-7. Mr Evans also claimed that if the amended defence to cross claim is not permitted Mr Drummond will seek to preclude any question being asked in respect of the 2013 Will, which appears very likely.
There is reason, says Mr Evans, to think that Ms Walker and Kasia seek the same outcome in both proceedings. Ms Walker deposes to having told Maria, in the course of preparing the 2013 Will for her, that Maria should include Kasia in the will when Maria told her she did not want to make such a provision and telling Maria that she had "promised" to leave her Estate to Kasia. Mr Evans pointed out that the Four Polish Beneficiaries have a real interest in the 2013 Will not being successful because of a concern that if Kasia's claim is successful and Ms Walker takes probate as executor, Ms Walker may well not actually resist Kasia's claim to the whole Estate. I think that the Four Polish Beneficiaries and Ibdah have a legitimate concern in this connection that would entitle them to challenge the appointment of Ms Walker as the representative to defend the Estate's interest should the 2013 Will be held to be valid.
It may be true that as a matter of strict logic the creation of the 2014 Will is not relevant to the creation of the 2013 Will since they were prepared by different persons, but the fact that there is an underlying similarity in the bequests, the fact that the 2013 Will and the 2014 Will were created within one year of each other, the involvement of Mr Johnston in some way with both the 2014 Will and NAJ-7 and the existence of FL5 seems to amplify, rather than reduce, the prospect that the Court will be likely to be looking at all of the evidence presented in support and opposition to the 2013 Will and the 2014 Will globally rather than sectionally.
Mr Drummond points out that Kasia's evidence is that she had nothing to do with the creation of the 2013 Will but whilst that is her evidence (supported I should note by Ms Walker and Alicja), Ibdah and the Four Polish Beneficiaries are not required to accept that evidence and ought be entitled to test its veracity. Mr Drummond described this as "just such a long bow" (at T65.47) but I do not think that is a fair description having regard to the matters that Ibdah and the Four Polish Beneficiaries want to agitate, namely:
1. Ibdah and Mr Knap have sought the production of the original of NAJ-7 and Ms Walker says that she does not know where it is: T39.26.
2. Ibdah and Mr Knap have asked for a copy of the email by which Ms Walker says she sent another version of NAJ-7 to Maria (see paragraphs 101 to 102 of Ms Walker's Affidavit of 31 August 2018) and have been told it cannot be produced because Ms Walker's hard drive "crashed": see T50.21-47.
3. Ms Walker's version of the conversation with Ms Johnston on 5 July 2017 is different to Ms Johnston's version: see Annexure A of the Affidavit of Ms Johnston of 27 September 2018 and see the Affidavit of Ms Walker of 31 August 2018 at paragraph 118.
4. In Ms Johnston's version Ms Walker does not refer to the will she holds as a draft. The version of the document sent to Ms Johnston does not have Ewa's name in it.
5. There is no document on the Fidelity Legal file with Ewa's name included and the 2013 document in that file is dated 15 August 2013. It does not contain a provision giving Kasia 50% of the Estate in comparison to the 2013 Will and it appears to be instructions for a new will.
6. That a beneficiary (albeit of a minor bequest) under the 2013 Will, Alicja, is the witness of Maria's signature.
7. That the person preparing the will was the daughter of a beneficiary and was not a lawyer. Maria had previously had a lawyer prepare her will in 1991 and had seen Mr Johnston in the same month that the 2013 Will was created.
8. That Maria sent Ms Johnston FL5 on 9 August 2013 and that document does not include Ewa as a beneficiary and included the names of Ms Walker and Ibdah as executors. Further the 2013 Will was not a document provided to Mr Johnston, yet on Kasia's case was executed but a few days before Maria contacted Mr Johnston. Nor was Ms Walker's further draft (CB1 657-660), which Ms Walker says she sent by email to Maria on 5 August 2013, sent to Mr Johnston.
9. That there are material differences between FL5 and the 2013 Will.
10. That the 2014 Will does not include Ewa as a beneficiary.
11. That the document (NAJ-7) which Ms Walker sent to Ms Johnston was not in the form of the 2013 Will.
12. That Kasia told Ms Johnston on or about 28 June 2017 that she held a copy of Maria's will in which the name of one executor (Ms Walker) had been crossed out but no such will has been produced.
13. Kasia and her fiancé Mr Spiros Tsiaousis told Ms Johnston that there was a Police investigation in respect of Maria's testamentary wishes and that the Police had asked that documents be provided to them: see paragraph of 11 of Ms Johnston's Affidavit of 23 April 2018. There is an email from Kasia to Ms Johnston dated 4 July 2017 (see NAJ-5) to the same effect. A letter from Delaney Lawyers (Kasia's solicitors) dated 19 February 2018 advises Ms Johnston in answer to her query that "as far as we are aware there is no Police investigation."
14. That although Kasia has had control of the Normanhurst Property since Maria's death the original of what Ms Walker claims is a draft of the 2013 Will and which Ms Walker says she sent to Maria has not been produced.
Mr Drummond also sought to oppose the amendment of the defence to cross claim by Ibdah based on the lateness in bringing the proposed amendment forward. At paragraph 186 of his written submissions of 11 September 2020 Mr Drummond refers to paragraphs 58 to 63 of his written submissions of 5 February 2020, and specific attention was drawn to Ms Rachael Abbott's Affidavit of 31 October 2019 (at CB1 349) in which she documented the delays relating to obtaining a handwriting expert. There have also been delays in the Four Polish Beneficiaries and Ibdah formulating their position in respect of the 2013 Will. Mr Evans resisted any suggestion that the Four Polish Beneficiaries, Ibdah or Mr Knap were at fault in progressing the matter and he drew attention also to the late filing of Kasia's Trust Proceedings. I do not see it as necessary to descend any further into these matters, since the Probate Proceedings have not been set down for hearing and Ibdah's motion was filed in June, well before the date fixed for the hearing of the three motions referred to in paragraph 38 above. Two of those motions went to the constitution of the proceedings and had to be resolved before the case could progress to a hearing. I think it would not be in the interests of justice (a key consideration mandated by s 58 of the Civil Procedure Act 2005 (NSW)) to deny Ibdah the opportunity to plead the matters which she seeks to put forward, even less so where those matters are potentially matters which the Court will need to consider in order to reach the requisite level of satisfaction that the 2013 Will was in fact the will of Maria and that its contents were known and approved of as her will.
In my view Ibdah should be entitled to defend the cross claim by raising the issues in respect of the 2013 Will that she has been advised to raise.
I think that it is appropriate that the Four Polish Beneficiaries be joined as defendants since they have just as much right to be defendants as Ibdah. They will need to have explained to them that Kasia has made clear through her Counsel that Kasia will, whatever the outcome of the case, contend at the end of the proceedings that they should not be entitled to their costs because their involvement, Kasia will claim, expands the costs unnecessarily. I do not want to pre-empt what view the trial judge might take of that "warning", particularly having regard to the matters ventilated in these reasons, but I would add, whilst warnings are being given, that no party (including Kasia) should assume that his or her costs will be paid out of the Estate if he or she is not successful in his or her claims.
The next question (see [85(3)]) is whether the Four Polish Beneficiaries should be required to provide security for Kasia's costs as a condition of joinder.
The Four Polish Beneficiaries are not seeking to be joined as plaintiffs or cross claimants in either the Probate Proceedings or the Trust Proceedings. Mr Drummond contends that they ought nevertheless be viewed as effectively cross claimants.
I do not think it is appropriate to view the Four Polish Beneficiaries as simply cross claimants since they seek to defend the 2014 Will and in that regard they are not appropriately described as cross claimants at all. Also in the Trust Proceedings they are clearly defendants and not cross claimants. Nevertheless, I am prepared to accept that if, as well as defending the 2014 Will, they wish to attack the 2013 Will, as they do, it is possible to view them as equivalent to cross claimants and I will proceed on the basis that prime facie Kasia would be entitled to security for some of the costs that will be generated in the Probate Proceedings. I do not think it can be ignored however that the 2013 Will, if upheld, will give to the Four Polish Beneficiaries approximately $6.6M worth of assets in the jurisdiction. It is important to reiterate that this is the outcome that Kasia herself propounds in the Probate Proceedings. If it is agreed that any amount due to the Four Polish Beneficiaries from the Estate will be subject to a charge up to an amount reflecting any costs order imposed on them in favour of Kasia then that will provide adequate protection in the Probate Proceedings. Mr Evans has obtained instructions to give such a charge and drafted orders to reflect that.
Mr Drummond's response is that whilst it is true that Kasia's success in propounding the 2013 Will would give the Four Polish Beneficiaries a significant entitlement that entitlement will be worthless if Kasia succeeds in her claim in the Trust Proceedings. I accept that if Kasia succeeds in both the Probate Proceedings and the Trust Proceedings the Four Polish Beneficiaries will have no entitlement to any part of the Estate, but I do not think that Kasia should be able to rely on an outcome in the Trust Proceedings to require security in the Probate Proceedings beyond a charge over the share of the Estate to which they will be entitled should Kasia succeed in her claim in respect of the 2013 Will. This is particularly so given that their position in the Trust Proceedings (defending Kasia's claim that Maria promised her entire estate to Kasia) is clearly that of defendants only.
In short, whilst Kasia is free to run both her Probate Proceedings cross claim and her claim in the Trust Proceedings, I do not think she should be able to rely on her Trust Proceedings to require security from the Four Polish Beneficiaries that would not otherwise be required.
Attention will need to be given to the question of whether Kasia has sent notice of the Trust Proceedings to all of the potential beneficiaries of the Estate other than Czeslaw, Ibdah and the Four Polish Beneficiaries, and if not whether notice should be given.