First Plaintiff v First Defendant

1. Marisa Luisa Iovenitti ('deceased') died on 22 January 2025 leaving no children or husband[1], and an estate valued at approximately $3.5 million.
2. By a will dated 8 April 2021 ('2021 Will'), the deceased appointed the defendants, John ('Jack') Fowles and Joan Fowles as executors and beneficiaries of her estate. Joan was the deceased's friend from school. Jack is Joan's son, and the deceased's godson.
3. On 7 January 2025, the deceased executed a will ('2025 Will') revoking all prior wills and appointing the plaintiffs, Nella Lucantonio and Emmanuel Mekhael, as executors and beneficiaries in equal shares of her estate. Ms Lucantonio was the deceased's late-husband's cousin and Mr Mekhael was the deceased's friend and hairdresser.
4. On 20 February 2025, the defendants lodged a caveat objecting to the grant of probate of the 2025 Will on the basis that:

(a) the deceased lacked testamentary capacity prior to and at the time of the execution of the 2025 Will;

(b) the deceased did not know and approve the contents of the 2025 Will; and

(c) the 2025 Will was procured in fraudulent circumstances.

1. The grounds are detailed, and to the extent necessary, are set out below.
2. By summons filed 10 October 2025, the plaintiffs seek orders striking out or alternatively, dismissing the defendants' caveat, summons and grounds of revocation on the basis that the grounds do not disclose a prima facie case pursuant to the inherent jurisdiction of the Court or pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules ('Rules'), or alternatively, ss 61 and 63 of the Civil Procedure Act 2010 (Vic) ('CPA') and r 22.03 of the Rules. The plaintiffs also seek an order dispensing with the requirement of r 22.04 to file an affidavit.
3. These reasons address the plaintiffs' applications.
4. The plaintiffs rely on:

(a) written submissions filed on 5 February 2026; and

(b) the affidavit of Mark Daniel Eaton sworn on 7 November 2025.

(a) submissions filed on 19 February 2026; and

(b) amended grounds of objection filed on 1 October 2025.

1. I will deal with the prima facie case application first, and then the summary judgment and strike out applications.

1. A prima facie case requires the caveator to establish that he or she has a 'case for investigation' or 'some ground' for making the application.[2] The Court of Appeal explained in Gardiner v Hughes (No 2) ('Gardiner v Hughes') that:

The task for the party seeking to have a grant of probate revoked is therefore to show that there is a 'case for investigation' or 'something to go on'. Such a case will, by definition, not be frivolous or vexatious. However, mere speculation will not suffice. Decisions in New South Wales capture a similar notion using the expression 'reasonably arguable' or, perhaps less commonly, 'substantial issue to be tried'. Consistently with the notion of 'investigation', New South Wales authorities permit regard to be had to the evidence 'reasonably thought likely to be available'.[3]

1. A caveator is not required to prove the application would be successful on a full merits hearing and is permitted to draw inferences from available facts or facts that may become available. The onus has been described as 'relatively easy to discharge' and less onerous than the burden that applies at trial.[4]
2. In Gardiner v Hughes, the Court of Appeal stated:

The parties proceeded before us on the basis that the applicants would show a prima facie case if they particularised facts which justified an inference that the deceased lacked testamentary capacity. As the formulations of the 'prima facie' test show, they would also succeed if the facts particularised justify the conclusion that there is a 'case for investigation' in that regard or 'some ground' for making the application. That conclusion may also involve the drawing of inferences from the particularised facts.[5]

There may be a case for investigation even if all the facts needed to justify the inference in question are not yet known or alleged, but there is enough to 'go on' to call for a trial. That will be the case if there is a reasonable explanation for the facts relied upon which, if shown to be correct, would justify revoking probate. Each case will of course depend on its particular facts. But in every case the onus rests on the party raising the doubt as to validity.[6]

1. In many cases, the question whether a prima facie case has been established is determined having regard to the grounds of objection which, for those purposes, 'are to be treated as true.'[7] However in other cases, some evidence may be filed. In this case, at the directions hearing held on 24 October 2025, orders were made that included orders for the filing of some evidence but it was not unlimited. The order was in the following terms:

OTHER MATTERS

...

1. The plaintiffs do not concede that the caveators have established a prima facie case.

2. The plaintiffs seek to file an affidavit exhibiting the notes of Dr Alice Bergin and Mr Thomas Natoli, solicitor. The plaintiffs submit that the affidavit will assist the Court in relation to the grounds of objection as to testamentary capacity and knowledge and approval of the deceased.

3. By these orders, the affidavit may be filed however the caveators will also have opportunity to file select further material following any such affidavit.

4. Other that [sic] an expressly set out below to the contrary, these orders do not provide the caveator leave to file additional material in support of their grounds of objection (such as any affidavits) nor leave to issue any subpoena.

...

THE COURT ORDERS BY CONSENT THAT:

...

1. By 4 pm on 7 November 2025, the plaintiffs may file and serve an affidavit by the plaintiffs' solicitor, exhibiting the letter of Dr Alice Bergin dated 23 January 2025 and the notes of Mr Thomas Natoli, solicitor, dated 7 and 9 January 2025.

3. If the plaintiff files further affidavit material pursuant to order 2,

(a) The caveators have leave to file and serve an affidavit in response to the further affidavit material by 4 pm on 12 December 2025;

(b) the caveators leave to file and serve any new or amended grounds of objection they are advised to file by 4 pm on 12 December 2025; and

(c) the plaintiff will have leave to amend its summons to include reference [to] any further amended grounds filed pursuant to these orders (if they are so advised) by 4 pm on 9 January 2026.

1. These orders suggest that the parties, and the Court, proceeded on the basis that the defendants would be permitted to file evidence in response to the plaintiffs further affidavit but would not be required, or even permitted, to file evidence more broadly in response to the plaintiffs' applications. The defendants were also precluded by the orders from issuing any subpoenas, which could have resulted in the production of medical records and legal files relevant to the issues in question. I infer from these orders and the submissions made, that the application was to proceed, broadly speaking, consistently with an orthodox approach, the grounds would be taken to be true for the purposes of the prima facie case application.

Testamentary capacity and knowledge and approval principles

1. A person will have testamentary capacity where he or she, at the time the will was executed:[8]

(a) understood the nature and effect of making a will;

(b) understood the general nature and value of their estate;

(c) understood and appreciated the claims to which they ought to give effect; and

(d) was not affected by any disorder of the mind which affects these matters.[9]

1. The propounder bears the onus of establishing the deceased's testamentary capacity.[10]
2. If the propounder proves that a will that is rational on its face has been duly executed, a presumption arises that the testator had testamentary capacity.[11] Once that is established, the onus shifts to the person impeaching the will to point to circumstances that raise a suspicion that the testator did not have capacity.[12] If the caveator points to such circumstances, the evidential onus is then put back upon the propounder to satisfy the Court that the testator had testamentary capacity.[13]
3. A similar presumption applies in relation to the testator's knowledge and approval. In Veall, the Court of Appeal explained:

Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.[14]

1. The plaintiffs rely on authorities indicating that evidence of capacity from an experienced lawyer is strong evidence that should not lightly be disregarded. But the authorities are clear that the Court must have regard to all the circumstances.
2. For reasons set out below, I have reached the following conclusions:

(a) I am satisfied that the caveator has established a prima facie case based on the grounds which, consistently with principle, I take to be true for the purposes of the application.

(b) Insofar as the requirements of s 63 of the CPA and r 22.05 of the Rules must be met, I am not satisfied that the plaintiff has verified all the facts necessary to warrant summary relief having regard to the allegations in the grounds. That being the case, it was not necessary for the caveator to show cause by evidence.

(c) If I am wrong about the above, then having regard to:

(i) the terms of the orders made in October 2025;

(ii) the context of the prima facie case and principles governing such applications; and

(iii) the matters raised in the grounds,

I am satisfied (for the purposes of s 64 of the CPA) that it is not in the interests of justice for the proceeding to be disposed of summarily and further that a full hearing on the merits is appropriate.

Has the defendant established a prima facie case?

1. The grounds identify a number of matters which, if taken to be true, raise a prima facie case going to questions of capacity and knowledge and approval of the 2025 Will. By way of summary, they include:

(a) the 2025 Will is not rational on its face;

(b) the deceased was elderly, frail and very unwell;

(c) the plaintiffs had been present with the deceased in the time leading up to the change of the will, and benefitted substantially from the terms of the 2025 Will; and

(d) the deceased's phone had been in the control of the plaintiffs in the time leading up to the changing of the will and the plaintiffs had deleted messages from the defendants.

1. The grounds are detailed and it is apparent from the above that there are numerous aspects of them, which if established, would raise questions about the deceased's capacity that meet the requirement of establishing 'something to go on' for a prima facie case. They include the following.
2. First, the grounds support the argument that the 2025 Will is not rational on its face. The defendants say the 2021 Will was entirely rational in appointing the defendants as executors and gifting them the estate given that the deceased lacked close relatives but had a close and longstanding relationship to the defendants. The defendants say the 2025 Will was not rational on its face given that the new beneficiaries are the deceased's hairdresser, whom she met in 2021, and her late-husband's cousin with whom the deceased had very limited contact.
3. Second, the grounds set out the health issues the deceased was facing and say it affected her cognitive capacity. The plaintiffs submit that the actual material regarding capacity is limited. The plaintiffs nevertheless identify numerous instances where they say she was tired, dazed, confused, exhausted, in pain, uncomfortable, incapable of making decisions and the like.
4. Third, the grounds state that the deceased had justified the 2025 Will by saying she had 'not had a relationship' with the defendants for 'quite some time.' The defendants say this is demonstrably false, and cite numerous instances of contact between 2023 and early 2025 when the 2025 Will was made.
5. The plaintiffs submit that the defendants have not established a prima facie case as to capacity and rely largely on a letter from the deceased's treating doctor, Dr Alice Bergin, dated 23 January 2025 and file notes from the deceased's solicitor.
6. The deceased was in Dr Bergin's care from 31 December 2024 until her death on 22 January 2025. In her 23 January letter, Dr Bergin wrote:

Marisa ... said that she was in the process of changing her financial power of attorney and medical treatment decision maker from those currently listed, to Jack and Joan Fowles, to Emmanuel Mekhael, her housemate, and Nella Lucantonio, her deceased husband's cousin.

Marisa was very clear that these were her wishes and was also very clear that if she deteriorated, Emmanuel and Nella were to be contacted to make decisions on her behalf, and not Jack or Joan.

...

Marisa started to deteriorate in early January from a clinical perspective, but was always able to make decisions about her health care needs and requests until she became unconscious and unrousable in her final days.

It was during this admission, on the 7th January 2025, that Marisa finalised significant changes to her last will and testament. Marisa maintained testamentary capacity at the time of signing her will. I can attest that Marisa understood what she was doing and she realised she was instructing her legal team to make changes to her will. Marisa was not delusional at the time of signing her will and she appreciated the gravity of the decisions she was making. Marisa was clear as she named those who would be beneficiaries, Emmanuel and Nella, and was clear that Jack and Joan were to be removed.

1. The defendants submit that Dr Bergin's evidence is far from determinative having regard to the fact that it is brief; based on a very short window of exposure to the deceased; and lacks any details about Dr Bergin's experience in assessing capacity, or knowledge of the test of capacity, or what, if anything, she did to determine capacity.
2. I agree with the defendants as to the limited weight that can be given to Dr Bergin's letter for present purposes. While the letter is from a treating medical doctor, it is based on a very limited exposure to the deceased and does not set out Dr Bergin's experience concerning assessing testamentary capacity, or what questions may have been asked, or tests administered for that purpose. As the defendants submit, there are many questions that may be asked of Dr Bergin in cross-examination.[15] I also note that the defendants were not given an opportunity to subpoena any medical records to interrogate what was being recorded at the relevant times as to the deceased's capacity. All of those matters are important to any assessment of capacity. That being the case, the letter is a factor, but is not on its own, or with the legal notes, sufficiently compelling to preclude a prima facie case. The question of capacity is not one to be answered solely by reference to medical reports or statements from lawyers, and Dr Bergin's letter does not provide a conclusive response to the lay observations of the deceased's behaviour described in the grounds.
3. The plaintiffs also rely on file notes made by Mr Di Staso and Mr Natoli, the solicitors responsible for drafting the deceased's 2025 Will. Those file notes were obtained by the plaintiffs' current lawyers. The documents produced do not constitute the whole file, but rather, a selection of file notes that the plaintiffs submit are relevant. The notes produced are as follows:

(a) A file note dated 7 January 2025 from 10:35 am to 11:30 am records:

She has asked the Emmanuel Mekhael and Nella Lucantonio to be her executors and beneficiaries.

...

Tom [solicitor] has asked Marisa for her reason for change.

Marisa stated that she is not comfortable with her current Will as she has not had a relationship with Joan or Jack Fowles for quite some time. Marisa seemed quite upset when discussing this ... She was adamant that she did not want Joan or Jack to have any involvement as attorneys or as executors and beneficiaries after her passing.

...

Marisa advised that she owns two properties, her Toorak apartment and the Richmond property (which she has owned for approx. 9 years). Marisa explained that the Richmond property is tenanted, and the managing agent is Kay & Burton. Marisa said she banks with HSBC and has approximately $500,000. Her super is with UniSuper ... and she has approximately $1.7m ... Marisa also said she has $200k invested with BT (being Bankers Trust).

...

Her instructions were clear and concise.

She was unequivocal in wanting to remove Joan and Jack from all of her affairs - be it during her lifetime, or upon her passing.

She was able to explain her asset position with some detail.

(b) A file note from later that same day at 8:15 pm to 8:45 pm reads:

Marisa asked Tom for him to read out the Will to her. He read out the main operative parts.

Following this, Tom then asked Marisa to explain back to us what she understood the will to mean. She advised that -

• Nella and Ammo (Emmanuel) were to be her executors.

• Everything she owned, after paying for her funeral and other bills, was to go equally to Nella and Ammo.

• That Joan and Jack Fowles were removed and were not to receive anything.

Tom then asked her again whether what she had explained is what she had wanted. She said yes, and confirmed again that she only wanted Nella and Ammo to share her estate.

She was happy to see me - knew who I was

I asked her whether she had any questions about the documents signed the other day - she said no ...

She was conversational and coherent ...

1. The plaintiffs submit that such evidence from an experienced lawyer is compelling and negates any prima facie case.
2. The defendants submit that the notes are unreliable having regard to the fact that the whole file has not been produced and it is unclear what else may have been said or done. By way of particular criticism, the defendants note that the emails of 29 December 2024 and 1 January 2025 record the deceased wanting to change her power of attorney, and the subsequent produced file notes record matters going to the changing of the deceased's will without any record of instructions as to how that change came about or who gave those instructions.
3. Again, I do not consider that the evidence from the file notes is sufficiently compelling to preclude the prima facie case that is otherwise established based on the grounds. I am satisfied that the defendants have established a prima facie case. I consider it appropriate to approach that question on the basis that the grounds are established. The grounds are extensive and cogent, and provide ample support for the conclusion that there is 'something to go on'. The fact that the defendants have not filed affidavits in support of their grounds does not detract from that conclusion. The application has proceeded on the basis that the defendants were constrained in what material they could file, and were not permitted to subpoena evidence that would have been particularly relevant to the question of capacity such as legal files and medical records. In those circumstances, it would be unjust to proceed on the basis that the defendants have failed to adduce relevant evidence to the extent they were precluded from doing so. This approach is consistent with the way many prima facie cases are dealt with, for example in Re Robustelle.[16]
4. I am also satisfied that the defendants have raised a prima facie case based on the question of knowledge and approval. In Re Martin, McMillan J described the nature of the inquiry into questions of knowledge and approval as involving:

consideration of whether the deceased actually understood the document and its effect, such that it can be said that the document represents the deceased's testamentary intentions. The sufficiency of evidence will depend upon the circumstances of each case. While evidence that the document was read by the deceased is relevant, and should be given due weight, it will not be conclusive. Other considerations include the mental acuity and sophistication of the testator, the complexity of the contents of the document and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon an estate, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice.[17]

1. Where there are circumstances that provoke suspicion that the deceased did not know and approve the contents of the will, the propounder once again bears the burden of demonstrating that the deceased knew and approved the contents of the will.[18] The grounds identify the following matters that, it is submitted, raise a prima facie case:

(a) Mr Mekhael and his partner engaged in conduct suggesting they were seeking to take advantage of the deceased including inducing the deceased to confer substantial benefits on them; involving themselves in the deceased's financial affairs; taking possession and control of the deceased's phone; and involving themselves in the will-making process.

(b) The 2025 Will was made shortly before the deceased's death when she was in very poor health.

(c) The deceased's significant understatement of her assets suggests that she was unaware of the extent of her estate or what she was disposing of.

1. The plaintiffs submit that the lawyers' file notes amply establish knowledge and approval. The defendants respond that the notes do not address what Mr Natoli knew about the relationship between the plaintiffs and the deceased; what conversation he may have had with the deceased; or explain why the deceased made statements that were demonstrably false. The defendants also submit that Mr Natoli has not given any evidence, and there has been no opportunity to cross-examine him about the relevant circumstances.
2. Based on the grounds, and for similar reasons as expressed concerning capacity, I am satisfied that a prima facie case has been raised by the defendants in relation to knowledge and approval. At this stage in the proceeding, the defendants need not prove the facts that give rise to suspicious circumstances but instead, they must demonstrate that there is a 'case for investigation', that is, a prima facie case.[19] I am satisfied they have done that.
3. The grounds also allege that the 2025 Will was procured by fraudulent calumny. A testamentary instrument that is procured in circumstances of fraudulent calumny will invalidate that instrument. Fraud, in such circumstances, consists of misleading or deceptive conduct.[20] This may include an individual making wilfully false statements, or suppressing material facts with the intention of gaining a benefit under the will or preventing others from obtaining a benefit to which they would have otherwise been entitled.[21]
4. In order to establish fraudulent calumny, a party must adduce evidence that the deceased held a false belief and that that belief would not have been held unless someone had induced them to believe it.[22] The defendants' grounds are that the deceased held false beliefs including that the defendants had misused a power of attorney, that she did not have a relationship with the defendants and that the defendants had not been in contact with her over the Christmas period. The grounds assert that those beliefs were false and that it can be inferred that they were induced by the plaintiffs who had been given power of attorney and control of the deceased's phone. I am satisfied that the grounds demonstrate a case for investigation. It seems clear that the plaintiffs were close to the deceased in the time leading up to the making of the 2025 Will. The grounds also describe a degree of hostility from Mr Mekhael towards the plaintiffs and that Mr Mekhael, while he had control of the deceased's phone, had deleted messages to her from Jack. Mr Mekhael has not given any evidence in response to those matters. That is not surprising given the way in which the application has proceeded, which is largely based on the grounds as stated.
5. I am satisfied that the defendants have established a prima facie case. The narrative set out in the grounds raises a case for investigation as to the suppression of material facts.

1. The plaintiffs also rely on r 23.02 of the Rules which provides:

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading -

(a) does not disclose a cause of action or defence;

(b) is scandalous, frivolous or vexatious;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court -

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

1. The plaintiffs also rely on ss 61 and 63(1) of the CPA which provide:

Section 61

Plaintiff may apply for summary judgment in proceeding

A plaintiff in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a defendant's defence or part of that defence has no real prospect of success.

Section 63

Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

1. Section 63 requires consideration as to whether a claim has a 'real' as opposed to 'fanciful' prospect of success.[23]
2. Section 64 provides:

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

1. Rule 22.03 of the Rules provides that an application for summary judgment pursuant to s 63 shall be made in accordance part 2 of Order 22. Rules 22.04 and 22.05 set out the requirements of affidavits in support and opposition to such an application. They provide as follows:

Summons and affidavit in support

(1) An application shall be made by summons supported by an affidavit -

(a) verifying the facts on which the claim or the part of the claim to which the application relates is based; and

(b) stating that in the belief of the deponent the defence to the claim or the defence to the relevant part of the claim -

(i) has no real prospect of success; or

(ii) has no real prospect of success except as to the amount of the claim or as to the amount of the relevant part of the claim.

(2) Where a statement in a document tends to establish a fact within paragraph (1) and at the trial of the proceeding the document would be admissible by or under the Evidence (Miscellaneous Provisions) Act 1958, the Evidence Act 2008 or any other Act to verify the fact, the affidavit under paragraph (1) may set forth the statement.

(3) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted.

(4) The plaintiff shall serve the summons and a copy of the affidavit or affidavits and of any exhibit referred to in the affidavit or affidavits on the defendant not less than 14 days before the day for hearing named in the summons.

1. Rule 22.05 describes what the defendant may do in response to such an application. It provides:

(1) The defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court.

(2) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out.

(3) Unless the Court otherwise orders, the defendant shall serve a copy of any affidavit and of any exhibit referred to in the affidavit or affidavits on the plaintiff not less than three days before the day for hearing named in the summons.

1. The Court has power under r 22.07 to permit cross-examination on such affidavits.
2. Rule 22.08 provides that the Court may dispose of the application in a number of different ways as follows:

(1) Subject to Part 4.4 of Chapter 4 of the Civil Procedure Act 2010, on the hearing of an application the Court may -

(a) dismiss the application;

(b) give such judgment for the plaintiff against the defendant on the claim or the part of the claim to which the application relates as is appropriate, having regard to the nature of the relief or remedy claimed;

(c) give the defendant leave to defend with respect to the claim or the part of the claim to which the application relates either unconditionally or on terms as to giving security, paying money into court, time, the mode of trial or otherwise; or

(d) with the consent of all parties, and notwithstanding Rule 77.03(1), dispose of the proceeding finally in a summary manner.

(2) The Court may stay execution of any judgment given under paragraph (1)(b) until after the trial of any other claim or counterclaim which remains outstanding in the proceeding as between the relevant parties.

1. In relation to an application for summary judgment under s 63 of the CPA, if the party seeking summary judgment verifies the facts on which the claim is based, then it is for the other party 'by affidavit or otherwise' to show cause as to why judgment should not be given. It is notable that the rules as to the filing of responsive material, or the relief that may be granted, are not expressed in mandatory terms. That is, r 22.05 provides that '[t]he defendant may show cause against the application', and r 22.08 sets out the relief the Court may grant.
2. It is apparent from the above that where an application for summary judgment is properly made and verified by affidavit, the circumstances in which a court may nevertheless decline to order summary judgment include where it is satisfied that:

(a) the defendant has shown cause by affidavit or otherwise against the application (r 22.05);

(b) it is not in the interests of justice to do so (s 64(a) of the CPA); or

(c) the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b) of the CPA).

1. The parties also accepted the well-known proposition that:

the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action **(**and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[24]

1. Further, a court will more readily hold that the summary judgment provisions of the CPA will be satisfied when 'the resolution of a dispute depends on a question of law, rather than on a question of fact.'[25] Where the prospects of success at trial involve a consideration of the evidentiary foundation of the claim, as opposed to the adequacy of a pleading, it is desirable that there should be 'a full trial of the claims.'[26]

Have the plaintiffs verified sufficient facts?

1. In order to determine whether the plaintiffs have discharged the burden on them to obtain summary judgment, it is necessary to be clear about what they must establish. The burden on the party applying for summary judgment, whether plaintiff or defendant, is to provide a sufficiently comprehensive answer to issues of fact, that the Court can conclude there is no real prospect of success. Where a matter proceeds by way of pleadings, generally speaking, it is the pleadings that (by allegation, denial and admission) determine what facts are in dispute. Where, as here, the application is based on a caveat and grounds of objection, it is the grounds that articulate the factual matters relied on in support of the objection. As the caveat procedure does not provide for any defence to be filed, the allegations in the grounds of objection should be taken as setting out the facts in dispute for the purposes of a summary judgment application.
2. Therefore, in the context of an application to summarily dispose of grounds of objection, the affidavit in support of summary judgment must verify sufficient facts to establish that the caveator has no real prospects of success on the allegations raised in the grounds.[27] If that is done, then the burden shifts to the caveator to show cause. It has been observed that 'unless the plaintiff makes a proper affidavit the defendant is not required to answer the application for judgment'[28] and 'a proper affidavit is a condition precedent to the exercise of the power conferred by the order to give judgment without a trial.'[29]
3. I note that in Re Demediuk, the plaintiff sought summary dismissal of the caveator's grounds, however they did so pursuant to s 62 of the CPA which permits a defendant (rather than a plaintiff) to apply for summary judgment.[30] The application appears to have been made on the basis, accepted by McMillan J, that '[i]n the context of a challenge to an application for a grant of probate, the plaintiffs are effectively in the position of a defendant in responding to the grounds of objection filed by the defendants.'[31] In Re Munro, Derham AsJ also proceeded on the basis that '[w]here, as here, there is a challenge to an application for a grant of probate by a caveator, the plaintiffs are effectively in the position of defendants in responding to the grounds of objection filed by the defendants.'[32] If that is so, then the appropriate provisions pursuant to which the application should have been brought in this case are s 62 of the CPA and Part 3 of Order 22 (rr 22.16 to 22.23) of the Rules.
4. There are some differences between the requirements to file affidavits in a plaintiff's summary judgment application and a defendant's summary judgment application. Under r 22.04(1), a plaintiff seeking summary judgment must file an affidavit in support. That is not surprising given that there will always be factual matters that must be verified to establish a claim. However, under r 22.18 a defendant seeking summary judgment is not required to file an affidavit - the rule is expressed in terms that '[i]f the defendant intends to rely on an affidavit in support ...'.[33] That is understandable given that there are circumstances in which a plaintiff's claim will be hopeless and no evidence is required to support an order for its dismissal. Whether a defendant is required to file evidence in support of a summary judgment application will depend on the allegations raised and relief sought.
5. I agree with the comments in Re Munro and Re Demediuk that a summary judgment application in this context is akin to a defendant's application for summary judgment. As a matter of substance, such an application is directed towards challenging the grounds of objection, rather than establishing the validity of the will, although the two exercises may be closely related. A plaintiff may successfully apply for the summary strike out of grounds of objection and yet not succeed in proving the will (which is the 'claim') for reasons other than those raised in the grounds. Another way of looking at it is that a plaintiff seeking summary strike out of grounds of objection is not required to prove the validity of the will they are propounding and therefore is not seeking judgment on its claim. Rather, a plaintiff only needs to sufficiently undermine the grounds that are raised against them. In any case, the Court's inquisitorial jurisdiction always leaves scope for further inquiries to be made as to the plaintiff's 'claim', irrespective of what happens to any grounds of objection.
6. I do not consider that there is any material difference between the application of the above principles for present purposes. The plaintiffs' application in this case is brought as a plaintiff's application for summary judgment, but if it was brought under s 62 (and Part 3 of Order 22), the plaintiff would be under the same obligation to verify facts in opposition to the grounds.
7. In this case, the relevant allegations made are those articulated in the grounds. As discussed above, I am satisfied that they establish a prima facie case. That being so, the respondent to those grounds (in this case, the plaintiff) is required to adduce evidence to respond to those allegations sufficient to justify summary dismissal. In the language of Lysaght v Blanalko, they must establish that 'there is no real question to be tried.'[34]
8. The first question then is whether the plaintiffs have discharged the burden imposed on them to verify the facts on which the opposition to the grounds is based. In this case, the matters raised in the grounds go to:

(a) capacity;

(b) knowledge and approval; and

(c) fraudulent calumny.

1. Accordingly, the plaintiffs must adduce sufficient evidence as to capacity and knowledge and approval, and a lack of fraudulent calumny that the Court can conclude there is no real prospect of success on those issues. If the plaintiffs adduce such evidence, then the defendants may show cause. If the plaintiffs do not adduce evidence to establish those matters, then their application will fail and there will be no need for the defendants to respond.
2. In support of their application for summary judgment, the plaintiffs rely on only one affidavit, being the affidavit of Mr Eaton, the current solicitor for the plaintiffs (but not the deceased's solicitor). In that affidavit, Mr Eaton explains that he has obtained the file of Mr Natoli who is the lawyer who acted for the deceased at the time the 2025 Will was drafted, and he attaches file notes that he says are relevant. Mr Eaton does not say the deceased had capacity, but rather implicitly relies on file notes from Mr Natoli who has not given evidence, and a letter from Dr Bergin, who has also not given evidence.
3. The reliance on Mr Natoli's file notes is less than compelling for a number of reasons:

(a) First, there is no direct evidence from Mr Natoli as to how the notes were prepared, or by whom. For example, it is unclear whether Mr Natoli took handwritten notes, or whether someone else did. No handwritten notes are produced. Nor is there evidence as to whether these are a direct transcription or rather a summary of some sort, or whether any of those notes were informed at all by memory, and if so, to what extent.

(b) Second, it is not clear from the notes what experience Mr Natoli may have in relation to determining capacity, or what matters he took into account in any such assessment.

(c) Third, the grounds make it clear that there are allegations of improper influence being exerted by Mr Mikhael but there is no evidence from Mr Natoli (or anyone else) as to any interactions he had with Mr Mikhael, or any interactions he observed between Mr Mikhael and the deceased, or any steps he took to ensure there was nothing untoward going on.

1. The reliance on Dr Bergin's letter dated 23 January 2025 is also less than compelling. There is no explanation as to what instructions were given to Dr Bergin that led to the creation of this letter, nor as to any relevant experience she has in determining capacity, nor as to what, if any, tests she performed in assessing capacity. There is also no direct evidence from Dr Bergin.
2. Further, the question of capacity is not a question that is answered simply by reference to medical reports or lawyers notes. It must be determined taking into account the whole of the evidence, which may include relevant lay evidence from friends.[35] The grounds raise a number of matters that enliven the question of capacity including specific observations at specific times by the defendants.[36] Neither Mr Natoli's file notes nor Dr Bergin's letter address those observations at all, or do not provide a determinative answer to the matters raised. There is sufficient doubt about the details of their assessments of capacity that the question should be left to trial.
3. Similar considerations apply to the question of knowledge and approval. The grounds raise a number of matters that arguably give rise to suspicious circumstances that are not answered, or not answered sufficiently, to warrant summary dismissal. For example:

(a) there is no explanation from Mr Mikhael at all as to any of the suspicious circumstances that are alleged which, if established, may found adverse inferences against him;

(b) there is no explanation as to why, in the exercise of the power of attorney by one or both of the plaintiffs, Jack was (allegedly) prevented from seeing the deceased; and

(c) there is no response to the allegation that Mr Mikhael deleted messages from Jack to the deceased from her phone in early January.

1. There is also no evidence at all filed in response to the grounds alleging fraudulent calumny.
2. In those circumstances, I am not satisfied that the plaintiffs have adduced sufficient evidence to warrant summary dismissal of the caveat or grounds. That is so even though the defendants have not filed any material.
3. The same reasoning applies to the question whether the grounds, or any of them, should be struck out. At present, they are allegations for trial; the plaintiffs have not adduced sufficient evidence to render any of them subject to strike out.
4. One of the orders sought in the plaintiffs' summons is that the requirement to file an affidavit in accordance with r 22.04 be dispensed with. The plaintiffs submitted that this order was sought 'because we are aware, acutely aware, of this list's attitude to the filing of evidence in prima facie case disputes.'[37] The plaintiffs then submitted that the course was taken to have the matter dealt with by directions, which is what occurred with the orders made on 24 October 2025. The plaintiffs submit that they filed the brief affidavit as permitted by the orders, and that in the circumstances that affidavit is sufficient support for the summary judgment application and further, it would be unfair to accede to the submission that the plaintiffs' affidavit material is deficient.
5. The defendants submit that the plaintiffs' affidavit does not support summary judgment as a matter of substance and that no dispensation should be given in respect of compliance with the Rules. The defendants also submit that the affidavit does not comply with the mandatory requirement of r 22.04(1)(b) as to a belief that there is no defence. It has been observed that that rule is there 'for good reason'[38] but also has been treated as a 'technical objection'[39] prone to dispensation.[40]
6. I do not consider that any dispensation should be given to the plaintiffs' regarding the requirement to file affidavits verifying facts necessary to support a summary judgment application. The requirement to verify necessary facts is fundamental to the jurisdiction of the Court to summarily dismiss a claim. Insofar as the paucity of affidavit evidence is attributable to the context of a prima facie case and the 24 October 2025 Orders, it reinforces the point that the application was fundamentally run as a prima facie case application. Insofar as the summary judgment application was pressed, there seems to me no good reason why the plaintiff should be entitled to any dispensation from the Rules, or the application of well-established principles concerning such applications. To grant the plaintiffs summary judgment in the absence of such proof would be a significant injustice to the defendants.

1. Rule 22.05(1) provides that 'the defendant may show cause against the application by affidavit or otherwise.'
2. As discussed above, the need, if there be any, to show cause only arises if the plaintiffs file proper affidavits verifying facts sufficient to answer the claims made, in this case, the grounds. Having regard to the conclusions reached above, it is not necessary for the defendants to show cause.

Should a full hearing proceed in any case under s 64 CPA?

1. Even if the plaintiffs have verified their position and the defendants have failed to show cause, the Court may decline to order summary judgment where it is not in the interests of justice to do so (s 64(a) of the CPA); or the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b) of the CPA).
2. If I am wrong, and the defendants have in fact failed to show cause, then I would in any case decline to summarily dismiss the grounds. I say that largely because the orders made on 24 October 2025 restricted the material that the defendants would be permitted to rely on and precluded them from issuing any subpoenas which may have produced particularly relevant material such as medical records and Mr Natoli's whole file. Those orders appear to have been made with a view to the application being heard largely on the basis that the grounds would be accepted as established, as is frequently the case in prima facie applications. In those circumstances, it would be unjust to grant the relief sought. The fact that the parties were permitted to file limited affidavit material does not detract from that conclusion.
3. The plaintiffs' summons will be dismissed. I direct the parties to provide orders reflecting these reasons, as well as in relation to costs, if they can be agreed. If they cannot be agreed, I will hear the parties further.

[1] The deceased's husband pre-deceased her.

[2] Gardiner v Hughes (No 2) [2019] VSCA 198 [12], [42] ('Gardiner v Hughes').

[4] Lynch v Perpetual Trustees Co Ltd [2022] VSC 702, [50], [79] ('Lynch v Perpetual').

[7] Re Robustelle (No 2) [2023] VSC 72, [10] ('Re Robustelle').

[8] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, [167] ('Veall').

[9] Banks v Goodfellow (1870) LR 5 QB 549, 565, 567 (Cockburn CJ). See recent citation in Re Kairouz [2023] VSC 168, [16]. Veall (n 8) 174.

[10] Veall (n 8) [174]; Re Walker [2025] VSC 714, [11], [168], [171].

[15] See Re Maddock [2022] VSC 346, [65].

[17] Re Martin (Deceased) (2019) 59 VR 584, [61]. See also Veall (n 8) 175, 178.

[19] Lynch v Perpetual (n 4) [79].

[20] Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136, [65].

[22] Re Patterson [2017] NSSC 221, [21], [66]-[68], [84].

[23] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, 39 [29] (Warren CJ and Nettle JA) ('Lysaght v Blanalko').

[24] Ibid [35(d)] (Warren CJ and Nettle JA), [40] (Neave JA). Cf Neave JA at [42] regarding the applicability of the over-arching purposes of the CPA to such applications.

[25] Mutton v Baker [2014] VSCA 43, [19].

[26] Manderson M&F Consulting (A Firm) v Incitec Pivot Ltd [2011] VSCA 444; (2011) 35 VR 98, [32], quoting JBS Southern Aust v Westcity Group Holdings [2011] VSC 476, [66].

[27] Hausman v Abigroup Contractors Pty Ltd (2009) 29 VR 213, [31], [33], [40].

[28] David J Bailey, Daniel D Nguyen and Nicolas C Dour, Civil Procedure Victoria (LexisNexis, May 2025) [I 22.04.20], citing Suburban Homes Pty Ltd v Ward [1928] ArgusLawRp 39; (1928) 34 ALR 160.

[29] Ibid, citing Symon & Co v Palmer's Stores (1903) Ltd [1912] 1 KB 259, 263-4.

[30] Re Demediuk [2016] VSC 587, [12].

[32] Re Munro [2018] VSC 747, [18].

[33] Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 22.18 (emphasis added).

[34] Lysaght v Blanalko (n 23) [27].

[36] See, eg, caveator's amended grounds of objection [2(57), (58), (60), (68), (72), (73), (76), (78)].

[37] Transcript of Proceedings, Re the estate of Ionvenitti (Supreme Court of Victoria, S PRB 2025 09876, Barrett AsJ, 26 February 2026) 7.

[38] Yang v Yue [2021] VSC 740, [48].

[39] John Beever v Roads Corporation [2018] VSC 635, [167]-[170].

[40] Ibid; Bendigo and Adelaide Bank v Grahame [202] VSC 86, [59]-[61], quoting Bendigo and Adelaide Bank v Grahame [2019] VSC 486, [18]-[19].