Hulme v Hulme

Supreme Court of NSW|2023-02-28|Before: Hallen J

Knorr v CSIRO (No 3) [2012] VSC 529 Lim v Lim [2022] NSWSC 454 Magjarraj v Asteron Life Limited [2009] NSWSC 1433 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 Rafailidis v Camden Council [2021] NSWSC 1087 Re Levy deceased (No 2) [1957] VR 662 Re Papavasiliou; Theofanous v Aizen (No 2) [2023] VSC 118 Rose v Richards [2005] NSWSC 758 Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92 Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47 Tatchell v Glavimans [2007] WASC 321 Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45 Ward v Ward [2011] NSWSC 107 Wharton v Bancroft [2011] EWHC 3250 (Ch) Category: Principal judgment Parties: Mark Shallcross Hulme (first Plaintiff/Applicant) Suzette Rosila Hulme (second Plaintiff/Applicant) David Hulme (Defendant/Respondent) Representation: Counsel: B Oliak (Plaintiffs/Applicants)

Solicitors: E Berman & Co (Plaintiffs/Applicants) File Number(s): 2021/189797 Publication restriction: Nil

Introduction

These reasons relate to a proceeding involving the estate of the Honourable Robert Shallcross Hulme (the deceased) who died on 4 December 2020 aged 79. (The deceased was appointed a Judge of this Court in 1993, retired from the Court in 2012, and returned, as an Acting Judge, to the Court between 2013 and 2016.)
The Plaintiffs seek to propound, in solemn form, a Will made by the deceased dated 13 June 2017. Without prejudgment, I shall refer to this Will as "the 2017 Will".
The Plaintiffs are the deceased's widow, Suzette Rosila Hulme, and one of their, now adult, children, Mark Shallcross Hulme. The Defendant named in the proceeding is another, now adult, child, David Alexander Hulme. There are two other children of the deceased, Richard Hulme and Braddon Hulme, who have played no part in the proceeding.
The Defendant is dissatisfied with the circumstances surrounding the making of the 2017 Will. He has attended Court, at various times, throughout the proceeding, in person, as an unrepresented litigant (as is his right). The suggestion, that he obtain legal assistance, was made more than once during the various directions hearings at which he attended.
Although the Defendant was served with the amended Statement of Claim filed on 20 September 2022, he has not entered an appearance (Uniform Civil Procedure Rules 2005 (NSW) (UCPR) rule 6.9) or filed a defence to the amended Statement of Claim (UCPR rule 14.3). Pursuant to UCPR rule 6.1, he would have been unable to take any step in the proceedings (including any appearance in court) without the leave of the court. He was not an "active party" in the proceedings (UCPR rule 1.2).
During the proceeding, the Defendant has sent numerous, many lengthy, emails, to the Court, and has appeared in Court during case management hearings. He has been permitted to appear and inform the Court of his intentions and as will be read, directions have been made to allow him to advance a case. (Whilst a distinction may be drawn between "active" and "non-active" parties, I am of the view that the position of a non-active party should be considered, since the UCPR r 6.1 permits the Court to grant leave to take a step in proceedings (including any appearance in court) and because the Defendant is a person who asserts that he will be adversely affected by the orders sought in the proceeding.)
As will be read, he did not appear at the hearing, which took place on 28 February 2023.
For the sake of convenience and clarity, and to avoid confusion, in these reasons, where appropriate, I shall refer to the parties, jointly, as the Plaintiffs and the Defendant, respectively, or shall, otherwise, adopt the given name of the party. In relation to others, after introduction I shall refer to her, or him, by her, or his, given name. No undue familiarity is intended.

The nature of the proceeding

The nature of the Plaintiffs' application, with which the Court is dealing, is one for Probate in solemn form of the last duly executed Will of the deceased. The Plaintiffs have based the application for the matter to be dealt with without further delay, principally upon the Defendant's failure to file, and serve, an Appearance, any Defence to the amended Statement of Claim filed on 20 September 2022, and any affidavits setting out the evidence upon which he wishes to rely to oppose the grant being made.
Bearing in mind the events to which I shall next refer, it will be necessary to deal with the conduct of the Defendant in more detail than the Court would normally rehearse. In addition, the value of the estate, as revealed by the evidence read in the application which was brought by notice of motion filed on 8 December 2022 is a relevant matter. I shall return to the notice of motion later in these reasons.
It is also necessary to refer to the Court's record of proceeding, which identifies the way in which the proceeding has been dealt with and the opportunities given to the Plaintiff to advance a defence.
As will be read, this is not a case where the Defendant could reasonably have proceeded upon the basis that he has not been given an opportunity to take steps to enable the determination of the claim for probate of the 2017 Will.
The notice of motion was listed to be heard on 28 February 2023. The Plaintiffs, as on many prior occasions, appeared by counsel. In addition, both Plaintiffs were present (as they had been on many of the occasions the matter had been listed). There was no appearance by, or on behalf of, the Defendant.

Some formal matters

Despite the time that has passed since the Statement of Claim, and then the amended Statement of Claim, was filed and served, the Defendant has not filed an Appearance or any Defence and/or Cross Claim.
UCPR Pt 6 r 6.1 provides, relevantly, that except with leave of the Court, a party may not take any step in proceedings unless the party has entered an appearance. The time limit for the defendant to enter an appearance under UCPR Pt 6 r 6.10(1)(a)(i) was, in the case of proceedings commenced by statement of claim, 28 days after service on him of the statement of claim or such other time as the court directs for the filing of a defence.
The Defendant has also not complied with UCPR r 14.3 which provides that subject to the rules, the time limited for a defendant to file a defence is 28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence.
The documents that he did send to the Court were not verified. Nor did they otherwise comply, for example, with the formal requirements for affidavits contained within UCPR Part 35, including the rules for annexures and exhibits under r 35.6, and the requirement for each page of an affidavit to be signed under r 35.7B. There was nothing on the face of any of the documents to suggest that he has had the advantage of legal assistance. For the most part, the documents were unilluminating.
Section 61 the Civil Procedure Act 2005 (NSW) provides that: (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following: (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed, (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate. (4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court."

The Defendant's email of Tuesday 28 February 2023

Generally, there should be no communication with a Judge's Chambers in relation to any matter before the Court without the consent of all other active parties to the proceedings: Tugrul v Tarrants Financial Consultants Pty Limited (in liquidation) [No 2] [2013] NSWSC 1971 at [3] per Kunc J; Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373 at [153] (Meek J); Al Dakhili v Al Kheurallah [2023] NSWSC 47 (Meek J) at [63]-[64].
In an email sent to my Chambers, and copied to the Plaintiffs' solicitor, at 1:00 a.m. on the day of the hearing, the Defendant wrote: "Dear Associate, I write to convey that unfortunately I will not be able to attend court tomorrow morning, and again extend my sincerest apologies to His Honour & all other associated parties. Further to my previous email correspondence of 23-02-2023 & 24-02-2023 (shown below), I attended the Emergency-Department at Royal North Shore Hospital (RNSH) on 25-02-2023 in relation to my current ongoing-health issues, where I remained overnight for assessment. I was then subsequently admitted to the hospital as an in-patient the next day 26-02-2023, where I remain for monitoring, treatment, and await further scheduled tests. As such, please find the attached image of a hospital issued "Medical / Attendance Certificate" (JPG file) as independent verification, issued at approximately 5.30 pm on 27-02-2023, and thereby unfortunately preventing any useful additional notice period prior to tomorrows scheduled 10 am Court listing for hearing this matter. I have also discussed these circumstances with a respected & experienced Sydney based lawyer whose firm specialises in Estate Law, with specific regard to being represented tomorrow (28-02-2023) in my absence, who expressed the view that he did not feel it would be appropriate to do so without having had the opportunity to be properly / appropriately briefed in advance. Accordingly, he advised I should send this email-explanation to yourself (as Associate) and include an attached copy of the hospital-issued Medical Certificate. Unfortunately, I am unable to know or confirm any further details of my expected or confirmed availability at this stage (either by telephone or in-person) but confirm I will endeavour to do so as soon as such information avails itself to me. Sincerely, David A. Hulme."
At the commencement of the hearing, Ms B Oliak, counsel for the Plaintiffs, confirmed that her instructing solicitor had received the copy email. There was no appearance by, or on behalf of, the Defendant.
In the circumstances, I determined that the Court should treat the Defendant's email as an eleventh-hour application to adjourn the hearing, even though it was not made, formally, by notice of motion, with supporting affidavit evidence.
Counsel for the Plaintiffs did not oppose the Court reading the documents that had been sent. The Court treated the copy of the medical certificate sent with the email as a document tendered in support of the Defendant's application. Together, without objection, they were marked as Ex. 1.
In support of the Plaintiffs' opposition to vacate the hearing date, counsel referred to the history of the proceeding; the fact that the contents of each of the documents sent to the Court was unverified; email correspondence, dated 23 February 2023, from the Court, to the parties to which reference will be made; and that no Defence, or any verified evidence in support of what the Defendant appeared to be alleging, had been filed or served.

The procedural history

To provide context to the hearing, and before detailing other matters, it is necessary to set out the procedural history.
The proceeding was commenced by an uncontested Summons for Probate, filed on behalf of the Plaintiffs, on 23 December 2021, in which they sought Probate of the 2017 Will of the deceased. They also sought consequential relief. The Summons was to obtain a grant of probate, in chambers, in the absence of the parties.
A caveat had been filed by the Defendant on 3 December 2021, which required that "no grant of probate or reseal be made in the estate of the deceased without prior notice to me". It also stated: "There are numerous complex issues surrounding my father's estate, which have been further complicated via a change in trustee lawyers/representatives and unco-operative or unfit executors which may affect any/all of the below.
The Defendant also stated that his "interest" was as "the 3rd son of the deceased. Whilst this form has been submitted by myself, I believe I am acting in the best interests of my father's family".
It is not clear whether the Defendant had complied with the Supreme Court Rules 1970 (NSW), Part 78 rule 66(3), which, relevantly, requires that if the caveator is aware that any other person is making, or is intending to make, an application for the grant of probate or administration, in respect of the same estate, the caveator must, within 7 days after filing the caveat, serve a copy of the caveat on that other person.
The Plaintiffs must have been oblivious to the Defendant having filed the caveat as they filed the Summons. However, because of the caveat, a requisition, dated 3 February 2022, was issued by the Principal Registrar, directing the Plaintiffs to Division 10 of Part 78 of the Supreme Court Rules 1970 (NSW) and setting out the procedure that could be followed in order to proceed.
On 16 May 2022, the Plaintiffs filed a response to requisition containing a notice of motion, seeking an order that the Defendant be joined as a defendant in the proceeding that had been commenced and that the caveat cease to be in force. The notice of motion was filed, subsequently, on 2 June 2022.
That notice of motion was first returnable in the Succession List on 14 June 2022. By this date, the caveat had lapsed by the effluxion of its six-month duration (see, Supreme Court Rules, Part 78 rule 69(1)), and the Defendant had not filed another caveat.
Apparently, the Plaintiffs then decided to proceed by way of pleadings, and they filed a Statement of Claim on 8 August 2022 in which they sought Probate in solemn form of the 2017 Will and consequential relief.
On 14 June 2022, Ms Oliak appeared for the Plaintiffs and the Defendant appeared in person. The Defendant confirmed that he was not a lawyer; indicated that he had obtained "some legal guidance"; that even though the caveat had lapsed through effluxion of time on 3 June 2022, he intended "at this stage" to oppose the grant of Probate of the 2017 Will; that he had sought a copy of all prior Wills made by the deceased; and that he had only been provided with a copy of the penultimate Will, being a Will dated 3 February 2005. I shall refer to this Will, without prejudgment, as "the 2005 Will".
Initially, he said that he did not dispute its validity, but a short time later, asserted that "There may well be a dispute about the 2005 Will". The Defendant raised other matters, including that "there are also likely issues… between my father's will and my mother's will". The relevance of the last statement was not made clear.
The Court made the following orders and directions: 1. Orders that by 4:00 p.m. on 21 June 2022, each party in whose possession, custody or control is an original testamentary instrument (a Will, a Codicil or an informal instrument) that is material in these proceedings deliver the instrument to the Probate Registry, marked to the attention of the Senior Deputy Registrar in Probate, to be included in the Court file 2021/189797. 2. Orders that David Alexander Hulme, who has filed a caveat which has now lapsed, file and serve any evidence upon which he intends to rely to support the matter proceeding by way of pleadings by 4:00 p.m. on 4 July 2022. 3. Directs the Plaintiffs to provide to the Defendant a copy of any Will made by the deceased in their possession, custody or control. 4. Stands the matter over for further directions before the Succession List Judge on Monday, 11 July 2022.
On 11 July 2022, the Defendant, again, appeared in person and accepted that he had not complied with the direction made regarding the filing and service of evidence, stating that "I was not aware, or did not, at the time, appreciate, that I was required to provide more documentation other than there was an acknowledgement that the caveat itself had lapsed". He repeated that "…the executors have not engaged in providing the information that they have been required to by law". He also maintained, without evidentiary elucidation, that the 2017 Will "is clear evidence of the lack of capacity".
The Defendant asked the Court to advise on "how [he could] build a case or work out what evidence to submit". When it was suggested by the Court that this question provided a clear reason for the suggestion that he needed legal assistance, the Defendant suggested that he could not afford legal advice. He was informed that the Court could not provide him with legal advice on those matters.
No order was sought, pursuant to UCPR rule 7.36, for reference to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. (Even if it had been, it would have been difficult to make such an order as the Defendant had not provided any information going to his means, or to his capacity to obtain legal assistance outside the scheme.)
It was also difficult to consider whether there was really any complexity to the proceeding as, in answer to a question from the Bench regarding the dispute about the validity of the 2005 Will, the Defendant stated "I question the validity of the 2005 Will on the basis that it appears inconsistent… I am not suggesting that [the deceased] did not have testamentary capacity".
The Court repeated that the Defendant really needed legal assistance to which he responded: "There are multiple issues here in regards to the executors not fulfilling their role".
As the Defendant had failed to comply with the directions made on 14 June 2022, the Court made orders: "1. Extend[ing] the time for David Alexander Hulme to file and serve evidence upon which he intends to rely to support an order that the matter proceed by way of pleadings to 4:00 p.m. on 18 July 2022. 2. Stand[ing] the matter over for further directions before the Succession List Judge on Monday, 25 July 2022.
On Friday, 22 July 2022, the Defendant sent an email (which bore the time 4:49 p.m.) to the Court, and to the Plaintiffs' solicitors, which was in the following terms: "Dear Associate, I enclose two attachments (Appendix AA - 14 pages) & (Appendix BB - 9 pages) for the directions hearing on Monday 25/07/22 in the above matter. This email has been copied to the plaintiff(s) legal representative, E. Berman & Co. Sincerely, David Hulme."
On 22 July 2022, my Associate, at my request, sent an email (which bore the time 4:55 p.m.) to the Defendant and to the Plaintiffs' solicitors, which was in the following terms: "This email is sent on behalf of his Honour Dear Mr Hulme, His Honour has been shown your email. The email does not contain any attachments."
On 22 July 2022, the Defendant sent an email (which bore the time 5:13 p.m.) to the Court and to the Plaintiffs' solicitors, which was in the following terms: "Dear Associate, Thank-you for your reply & my apologies. The email system would not attach the files as they are deemed too large. I will have to rearrange & resend. David Hulme."
On 22 July 2022, the Plaintiffs' solicitors sent an email (which bore the time 5:16 p.m.) in the following terms to the Court and to the Plaintiffs' solicitors, which was in the following terms: "Dear Sir We have not received any attachments"
On 25 July 2022, during the conduct of the Succession List, the Defendant sent an email (which bore the time 11:58 a.m.) to the Court and to the Plaintiffs' solicitors, which was in the following terms: "Dear Associate, I write to convey I am unable to attend court today. I had hoped to be able to address the absurdity of this case, the fact that my 79 year old widowed mother has been living under a disturbed state of coercive-control for the last 18 months since my father passed away, and despite my several attempts to address this, the NSW Police will not act as they say it is a matter for the court. Unfortunately, the estate lawyers seem more intent on charging for maximum billable hours than focusing on human decency, and the estate executors have determinately acted to remove any standard operating functionality from my life, sabotaging my ability to adhere to the normal documentation submission process, let alone the accessing the resources to hire a lawyer to attend court in my absence. I will forward the documentation the court requires as soon as I am able. I hope the court will see fit to adjourn until this matter can be heard properly. This email has been copied to the plaintiff(s) legal representative, E. Berman & Co. Sincerely, David Hulme."
Despite the terms of the first sentence, the Defendant did, in fact, appear. Hoping, to progress the matter, the following directions and orders were made: 1. Orders that the matter proceed by way of pleadings. 2. Orders that David Alexander Hulme be a party to the proceedings. 3. Orders the Plaintiffs to file and serve a Statement of Claim by 4:00 p.m. on 8 August 2022. 4. Orders the Defendant to file and serve a Defence and any Cross-Claim by 4:00 p.m. on 22 August 2022. 5. Orders the Plaintiffs to file and serve any Defence to Cross-Claim by 4:00 p.m. on 5 September 2022. 6. Reserves the costs of the Plaintiffs notice of motion. 7. Stands the matter over for further directions before the Succession List Judge on Monday, 12 September 2022.
On 22 August 2022, the Defendant sent two emails (which bore the time 4:00 p.m. and 4:25 p.m. respectively) to the Court and to the Plaintiffs' solicitors in the following terms: "Dear Associate, I refer to your below email with regard to this matter proceeding by way of pleadings, and the associated requirements for submissions by "Statement of Claim". I have been awaiting confirmation-receipt of the plaintiffs sealed "Statement of Claim", which they have delayed providing until 5.33pm yesterday, Sunday 21-08-2022. This has naturally slightly inhibited the time-frame for the finalisation of my own filing & serving of a "Statement of Claim" for the purposes of Defence and any Cross-Claim by 4.00 p.m. today, as directed by the court. However, as it has never been my intention to add any undue delay to these proceedings, I hereby issue my apologies, and confirm I will provide the aforementioned defence "Statement of Claim" within 24-48 hours (ie. by 4.00 p.m. on 24 August 2022), which I hope will be satisfactory to his Honour, and avoid any need for wider delays. In the meantime, I will also submit and serve (via email) various other previously mentioned documentation upon which the defence case intends to rely, as a show of good faith as to preparation and the seriousness of various related aspects. Sincerely, David Hulme." "Dear Associate, I enclose one attachment as a MS Word document in relation to the above matter of the Estate of Robert Hulme - No 2021 / 00189797. Document Name: "2021_00189797 - APPENDIX BB - Estate Maintenance - Boat Photos" comprising 9 pages & 18 photographs. This email has been copied to the plaintiff(s) legal representative, E. Berman & Co. Sincerely, David Hulme."
On 23 August 2022, the Defendant sent an email, bearing the time 1:27 a.m., to the Court, and to the Plaintiffs' solicitors, which was in the following terms: "Dear Associate, I enclose one attachment as a MS Word document in relation to the above matter of the Estate of Robert Hulme - No 2021 / 00189797. Document Name: "2021_00189797 - APPENDIX AA - Estate Maintenance - Apartment Photos" comprising 12 pages & 22 photographs. This email has been copied to the plaintiff(s) legal representative, E. Berman & Co. Sincerely, David Hulme."
A few minutes later he sent another email, to the Court and to the Plaintiffs' solicitors, which was in the following terms: "Dear Associate, I enclose one attachment as a MS Word document in relation to the above matter of the Estate of Robert Hulme - No 2021 / 00189797. Document Name: "2021_00189797 - APPENDIX CC - MSN Daily Mail Article - Sydney Woman Developing Dementia From Mould (2022-08-21)" comprising 4 pages & 4 photographs. This email has been copied to the plaintiff(s) legal representative, E. Berman & Co. Sincerely, David Hulme."
On 24 August 2022, the Defendant sent another email, bearing the time 4:29 p.m., to the Court and to the Plaintiffs' solicitors, in the following terms: "Dear Associate, I enclose one attachment as a MS Word document in relation to the above matter of the Estate of Robert Hulme - No 2021 / 00189797. Document Name: "2021_00189797 - RSH Estate - Respondents Statement of Claim Defence - 24-08-2022 (Private & Confidential)" comprising 10 pages. I am currently unexpectedly caught up in Queensland and somewhat displaced. As such, I have provided an unsigned digital copy, however I will endeavour to provide a signed version with formalised cover-page etc, as soon as I am practically able, or alternatively in person at the next court appearance if that is preferred. Please let me know if you require anything further at this time. This email has been copied to the plaintiff(s) legal representative, E. Berman & Co. Sincerely, David Hulme."
None of the attachments was verified.
On 24 August 2022, the Defendant sent an email, bearing the time 8:01 p.m., to the Court and to the Plaintiff's solicitors, which was in the following terms: "Dear Associate, Upon rereading the document sent in my last email, I noticed a typo which creates confusion. As such, on page 8 there is a section entitled 'FRAUD', with a subsection entitled 'RSH 2000 WILL'. Please note, the last sentence of this section begins with "I hereby note that the 'RSH 2005 Will' ".... etc. However, it should read "I hereby note that the 'RSH 2000 Will' ".... etc. This email has been copied to the plaintiff(s) legal representative, E. Berman & Co. Sincerely, David Hulme."
The document attached was headed "Respondent's Statement of Claim/Defence". I shall not set out its contents, but the headings provide some limited guide to the nature of the contents: "Administration", "Introduction", "Method", "What is the Point of this dispute" (Executors unfit/and/or unco-operative; Suitability of Executors vs Trustees", Interlocking Wills and Commitments; AMP Life Insurance Policy), "How can the purpose of the due administration of this estate be achieved", "2017 Will - Goal to make capital allocation allowance for Braddon's accommodation" and "Court Costs & Estate Costs".
Most relevantly to the proceeding which had been commenced were the contents under the heading "RSH Will" which stated that: "…there are reasonable questions as to the extent of RSH's 'Testimentary (sic) capacity' at the time of writing the {RSH 2017 Will}. That is not to suggest that my father had lost 100% of his testamentary (sic) capacity at that time, but rather an acknowledgement that his situation likely mirrored that of many elderly individuals where such capacity had reduced by a not-insubstantial degree, as compared to when he was at his intellectual best". Indications of this include the following:- • RSH Medical History - The family was well aware that RSH's medical history includes that he was being treated over several years prior to the {RSH 2017 Will} for what was then diagnosed as Chronic Lymphocytic Leukaemia (CLL). This condition was later re-diagnosed as a different type of Auto-Immune disease, albeit with similar effects on body and brain function. Part of his treatment included approximate bi-annual blood transfusions in order to rectify and/or re-balance RSH's blood-cell counts and related energy levels. • The Order-of-Clauses, Sub-Points and Interactive-Detail of such clauses/sub-points is spurious. While this 'disorder' is in-and-of-itself not necessarily of significant consequence if it were found in the 'Will' of the average individual, it could, and perhaps should, be cause for concern when assessed in comparison to RSH's highly-demonstrated organisational thought processes, as demonstrated throughout his decades long career as a practising Barrister, Queen's Council (QC), and NSW Supreme Court Judge, as well as within his written judgements of highly complex legal cases. • The {RSH 2017 Will} is decidedly and unnecessarily complex for an Estate of it's relative monetary value. Again, while the level of complexity of any 'Will' is a matter for the individual-owner, the author must be sensibly cognisant of the practicality of implementing such complexity. This includes the necessary real-world costs of doing so, particularly where the ongoing management of such trusts, may be instigated, & such ongoing 'Trusts or Vehicles' require professional fees be paid, where there may not be adequately skilled-individuals available to do so for the 'duration' of such vehicles, without professional payment. Further, any such trusts which are to engage in the purchase and sale of large rigid-type assets such as property dwellings, must be in a reasonable financial position to afford the associated transaction costs of doing so, including for payment of stamp duty(s), and requisite taxes. Particularly where such transactions of these large rigid-type assets are to be (potentially) repeated over time. • Mark and Braddon do not get along with each other. They were born 13 months apart, and the simple truth is they have largely never seen eye-to-eye, but have always been each others greatest competitor. That is, either physically, or psychologically, and often both. Perhaps akin to one-another's personal Nemesis. This includes a fundamental inability to be (or appear) empathetic to each other, including common (sometimes daily) vicious physical fighting throughout their teenage years. This rivalry has been witnessed by many (perhaps dozens) of relatives and family friends over many decades. That is, considered-witnesses who could readily be called upon to provide testimony to that effect. As such, the idea that Dad could ever consider placing one of them (Mark) in a long-term position of effective authority over the other (Braddon) is simply ludicrous. Indeed ludicrous, without parallel. Had any individual other than my father sought to do so, I would describe the action as 'Deliberately Mischievous', and perhaps seeking to invoke a state of perpetual family disquiet. However, having said that, what I find is perhaps more concerning is that it is apparent from his prior 'Wills', that my father had decided upon this strategic course of action at earlier times in his life, where there was no question as to his 'Testamentary Capacity'. I can only suggest that as the eldest child of his generation, my father was inclined to view his eldest child through somewhat rose-coloured glasses. A perspective that was likely aided by Mark's predominantly steady life circumstances, such as his consistent career employment, or at least, relative to Braddon's. Alternatively, or perhaps in addition, such a strategy or approach was driven by the fact that he could not devise an alternative answer which he deemed practical or appropriate. Indeed my father indicated as much in the penultimate sentence of his enclosed letter "To My Children And To My Executors And Trustees", dated 13-06-2017. • RSH did not possess or retain appropriate authority (ie. Power of Attorney, etc) over Braddon's affairs, & thereby did not possess any 'legally' justifiable reason(s) to dictate or impose 'ongoing' material restrictions, and/or interpersonal relational-bonds or impacts, upon an adult child. Particularly, overbearing ones. Any trust that were setup to hold real estate property for the purposes of providing accommodation assistance to Braddon, where the trustees are entitled to oversee and interfere with his personal freedom to choose to engage in social or neighbourly-relations, would be an overbearing interference in his adult life. Indeed even more so, where the selected trustees, had fundamentally different types of lifestyles & life experience, and lived or operated their own lives in a totally different socially-economic bracket, meaning they would likely have a lack-of-ability to understand the extent of any potential ramifications of their social interference. As such, any constructively-intended decision to leave a monetary inheritance as a one-time gift, or as a gift of periodic-payments (whether accrued Interest, Dividends, or Capital draw-down), is a distinctly separate matter from imposing significant ongoing constraints/ limitations/ relationships, upon the life-circumstances of another adult. Indeed this extends even further, to such things as tax implications for a recipient, or potential limitations that may arise on pre-existing social security payments, etc."
On 12 September 2022, the Court made the following orders and directions: "1. Grants leave to the Plaintiffs to file and serve an amended Statement of Claim by 4:00 p.m. on Monday, 19 September 2022. 2. Directs the Defendant to file and serve a Defence to the amended Statement of Claim by 4:00 p.m. on 10 October 2022. 3. Stands the matter over for further directions before the Succession List Judge on Monday, 17 October 2022."
The transcript of the proceeding on this date reveals that the Plaintiffs' counsel reminded the Court that a Defence, in proper form, had not been filed; that the Defendant had maintained that he questioned the testamentary capacity of the deceased at the time of making the 2017 Will; and that the Court had repeated the suggestion that he obtain legal assistance, including by making an application for pro bono assistance; that the Defendant should "start the process of at least getting together the evidence that you are going to rely upon in relation to alleging that that the deceased had lacked testamentary capacity at the relevant times"; that perhaps, in light of the assertions regarding the executors that an independent administrator might be appropriate; that the Court's task in the proceeding was to determine which was the last valid Will of the deceased and to whom Probate of that Will should be granted.
The Defendant then raised the question "whether or not my mother is in a fit state to be acting as an executor as we speak".
Pursuant to leave granted by the Court on 12 September 2022, the Plaintiffs filed an amended Statement of Claim on 20 September 2022 in which they, again, sought Probate in solemn form of the 2017 Will, but in the alternative, sought Probate in solemn form of the 2005 Will, and in the further alternative, Probate in solemn form of the deceased's Will dated 2 March 2000, to which Will I shall refer, without prejudgment as "the 2000 Will". They also sought consequential relief.
The matter was again in the Succession List on 17 October 2022. The Plaintiffs' counsel noted that the 2017 Will was in the handwriting of the deceased himself and that an affidavit of attesting witness had been filed.
The Defendant accepted that he had received a copy of the amended Statement of Claim that had been filed on 20 September 2022, but that he had not filed a Defence. He said that he would file a Defence the next day. He stated that he had failed to comply with the Court's direction, "not by choice" but "because my current circumstances are preventing me from operating as normal". He provided some details which are not necessary to repeat. He stated that the failure to comply was not because of "any disregard for the Court". He accepted that he had still not put on all the evidence going to why the 2017 Will, or any other prior Will of the deceased, was invalid.
The Defendant was unable to advise the Court when his evidence might be completed, stating that "I would need to have the testimony of multiple witnesses some of whom reside interstate … some of the evidence would be my own personal testimony". He also raised "the possibility of fraud". He said that he had "spoken with the police in regard to this matter [and] the police have referred me to the Court".
In the circumstances, the Court, relevantly, made the following orders and directions on 17 October 2022: "… 3. Extends the time for the Defendant to file and serve any Defence to the amended Statement of Claim to 4:00 p.m. on Friday, 21 October 2022. 4. Directs the Defendant to file and serve the lay evidence upon which he intends to rely by 4:00 p.m. on 30 November 2022. 5. Stands the matter over for further directions before the Succession List Judge on Monday, 5 December 2022."
On 5 December 2022, the matter was again in the Succession List and there was no appearance by, or on behalf of, the Defendant. Indeed, the Defendant did not provide any indication to the Court that he would be unable to appear. The Court made the following notations and directions: "1. Notes that the matter has been called twice outside the Court and that there has been no appearance by or on behalf of the Defendant. 2. Notes that the Plaintiffs now wish to proceed with the determination of the proceedings and will file and serve a notice of motion and any affidavit in support which is to be returnable on Friday, 16 December 2022. 3. Stands the matter over for further directions before the Succession List Judge on Friday, 16 December 2022."
On 15 December 2022, the Defendant sent an email to the Court setting out what he asserted were problems that he had experienced and attempted to explain his non-appearance on 5 December 2022. Economy does not enable the Court to outline the contents of the email which comprised 4 closely typed pages. In summary, by reference to headings, he asserted "Electronic Interference", "Postal Interference", "Telecommunication Interference", "Building Security", other events, the relevance of which it is difficult to understand, and "a medium case of gastroenteritis this week". The email concluded after requesting an adjournment until the new Law Term that: "I believe it will provide the necessary time to finalise and submit the currently outstanding/overdue defence documentation in advance. This is in the hope that doing so, may provide a 'considered foundation' for potential 'mediated type' solution aimed at reducing the likelihood of any drawn out court hearing or appeals process".
On 16 December 2022, the Defendant again appeared in person. He stated that he had not been able to operate as he normally would; that there remained for investigation the possibility of an issue of fraud "not in the final will but in the penultimate will", and that when the Court reconvened in the New Year, he would be able to file and serve a proper defence and the evidence upon which he relied.
The Court concluded the directions hearing with the statement that the Defendant would be given "one last opportunity on the basis that if he does not comply with this direction he will not be permitted to do so".
The Defendant was also informed that the Court would not adjourn the matter again if the direction was not complied with. The Court then made the following notations, directions, and orders: "1. Notes that the Defendant has been unable to, and in that way has failed to, comply with, directions made by the Court in relation to filing a proper Defence and any Cross-Claim and the evidence in support of the allegations that he wishes to make in defence of the proceedings. 2. Directs the Defendant to file and serve a Defence and any Cross-Claim by 4:00 p.m. on 25 January 2023. 3. Directs the Defendant to file and serve any lay evidence in chief upon which he intends to rely by 4:00 p.m. on 25 January 2023. 4. Directs the Plaintiffs to file and serve a Defence to any Cross-Claim by 4:00 p.m. on 6 February 2023. 5. Directs the Plaintiffs' solicitors to inform the Defendant in writing by 4:00 p.m. on 21 December 2022 of the pleadings and affidavits upon which the Plaintiffs intend to rely. 6. Orders the Defendant to pay the Plaintiffs' costs of the appearance on 5 December 2022. 7. Orders that today's costs be the Plaintiffs' costs in the cause. 8. Stands the notice of motion over for further directions before the Succession List Judge at 9:45 a.m. on Thursday, 23 February 2023."
On 26 January 2023, the Defendant sent another lengthy email to the Court and to the Plaintiffs' solicitors which was in the following terms: "I write to inform you of my current medical circumstances, [due to an acute ongoing Gastroenterological illness], which unfortunately…prevented me from being able to comply with "Points 2 & 3" on the courts latest "Form Of Orders" for this matter, issued on the last 'List' date of 16-12-2022. This… which began in the first half of December, and that I previously made mention of related symptoms in my email of 15-12-2022. Despite subsequently engaging in multiple consultations with my General Practitioner's (Dr Kang on 22/12/22 & 13/01/23, and Dr Thompson 04/01/23), submitting to a variety of blood/urine/stool analysis, and undertaking various medications including two separate-courses of antibiotics (being Flagyl_Metronidazole & Ciprofloxacin Sandoz_Ciprofloxacin), the issues are still unresolved. Accordingly, I continue to engage with these doctors, including receiving a referral, and awaiting a consultation with a specialist Gastroenterologist. This includes dealing with ongoing daily pain that can fluctuate hourly, between general discomfort, through to extreme, excruciating, passing-out level paralysis, which I unfortunately expect may be indicative of a more structural issue. Clearly this situation has significantly impeded my ability to finalise the preparation and serving of my "Defence / Cross Claim / Lay-evidence-in-Chief". Particularly given the significant extra-work associated with addressing the multitude of additional new statements/claims made by the 1st Plaintiff in his Affidavit of 08-12-2022 (Filed 09-12-2022). This includes many statements which I regard as readily provable to be deliberately misleading, if not factually inaccurate (as I believe he is well aware), as well as the "extraordinary" unsolicited defamatory over-reach toward my (supposed) 'personal situation/character, and/or, my professional character/capability', which have no bearing on this Probate matter of my father's estate. Indeed, this personal attack would appear to provide an additional example of an Executor abusing the power of their position, by introducing private & confidential materials of the deceased, that is deliberately aimed to distract, agitate, and over-complicate the matter at hand, in an attempt to derail due process for the opposing party. After all, the choice to include an individual, completely unrelated document that pertains to an internal family matter, when he is fully aware there were a plethora of related communications between multiple parties over a period of years, clearly begs the question of what criteria led to the decision to cherry-pick that particular document? Further, to act in such a manner clearly subjects the estate to additional potential claims of legal / financial-liability. That is, in addition to his prior Executor imposed decisions of unduly and unnecessarily separating me from both personal property and company assets, in the weeks following my fathers' death. Accordingly, this also begs the question of how in good conscience, could the Estate solicitors allow their client to include this document, if they were truly representing the best interests of the estate, as opposed to assisting to escalate or exacerbate any part of the dispute, perhaps with the view to increasing their likely billable hours for this case? As such, in regard to the above, and in understanding that I will also need to enter these associated points in the appropriate format for formal court submission, I feel it prudent to make note of the following at this time, as just some examples of why it appears the decision to include much of the content in this Affidavit was simply designed to be vexatious and prejudicial:- 1. Boat Valuation - In 2021 my mother (as Executor) indicated the widely-respected, "Primary broker's" valuation of the vessel to be approximately AUD $1.25 million. This corresponds to my own independent personal research (as a professional investment analyst) indicating a reasonable asking price relative to a multitude of other vessels with somewhat similar characteristics to be approximately AUD $1.3 million. This differs substantially from the stated 'potentially-expected' realisation figure, that may become available to pay off any bank debt. A difference in amount of approximately AUD $500,000. Naturally, this difference in amount would clearly also be reflected on the top line of the estate's accounts. As such, any hypothetical future sale for this type of amount, would clearly be questionable, if not likely indicate an outright negligence on behalf of the executors, which begs the question of why this valuation has been used as an indication? 2. Mounting Costs - I am most aware and concerned about the mounting costs of the Estate. This includes the Legal fees being incurred in relation to a court case that has been ultimately driven by my father decisions in inter-linking his financial choices to the relationships of the living, the estate's executors choosing not to engage in sensible & respectful communications with those named in the Will, and a formalised procedural process which I regard as lacking in numerous places, and overly cumbersome in others. Overall circumstances that I believe were largely, if not completely avoidable. In addition, I note the circa $4,200 amount in monthly interest payments, which while unfortunate, I contextualise it's relativity to the $500,000 discrepancy in expected boat valuation, above. 3. Access to Family Accounts etc. - I agree I have never had access to my parents bank accounts. Why would I, as there has never been any need? However, I have engaged in many, many conversations over decades with both of my parents regarding their overall financial situation, including a 'countless' number with my father regarding trading, investing, & stock/investment valuations. In addition, when staying at my parents residence, I would regularly assist each of them with their general computer issues, including the required access to their passwords to do so, as well as them allowing me free access to utilise their devices (& view passwords), whether they were present or not. Indeed, I know where & how their passwords were stored (that could be confirmed under-oath by others), and indeed what some of their various passwords were, and/or iterations of the same. To suggest otherwise is simply ABSURD. 4. David's Personal Situation - I have spent the vast majority of the last 30 years living in either separate city's, states, or countries from my eldest brother, and have had a particularly strained relationship with him and his ex-wife since approximately 2013. Contrary to the egocentric perception illustrated in his Affidavit of 08-12-2022, he has a relatively limited knowledge of the intricate details of much of my life circumstances, or professional capabilities. As such, I note that his negative comments surrounding my capabilities, are in direct contrast to multiple detailed employment references that I have received over decades, regarding numerous years of employment in both a Business Management capacity, and as an Investment Performance Analyst. That is, references from multiple, highly-qualified, highly-respected individuals, with decades of proven experience related to managing many, many, tens-of-billions of dollars of complex investments throughout the financial field. 5. Dad's Letter - Respect for My Father's Legal Judgement - I have always had significant respect for my fathers legal knowledge and judgement, and indeed have always gone to him as my first point of legal advice. The related 'alternative' comments shown in my fathers letter, were the result of my perception that his emotions or desires on the family matter in question, were clouding his perception. Perhaps akin to the reasons that Judges & Doctors are required to recuse themselves from sitting on Hearings related to family matters, or performing standard-surgery on family members. 6. Dad's Letter re Formal Family Remediation - My suggestions that family members should consider psychological counselling, was in direct response to the same assertion from them. This was something I regarded as a misdirection or excuse, that they were using to avoid engaging on a matter of immense frustration to me. A matter that pertained to what I regarded as the latest episode in a decades-long culture of toxic-relationship disrespect, by certain individuals. As a child, I automatically fell into adopting the role of family peacemaker, which I now understand is common for many third-born children. As such, this was the first (and only) time in my adult life (prior to these estate issues), that I had "dug-my-heals-in", which was a long-considered, deliberate decision. Ironically, all it achieved was a more intense, stubborn form, of group-think opposition, which escalated over multiple years. Further, contrary to being obstructive to the process, and despite being the aggrieved party, I was the first individual in our family to call the "Psychologist Relationship Counsellor / Mediator" that my parents had requested we engage with, in order to begin the process and book meetings. I then voluntarily attended 7 solo sessions over multiple weeks, before eventually becoming frustrated & threatening to withdraw from the process, due to no other family member participating, which had been the 'sole-prerequisite to my agreement to engage with the process. In addition, upon their eventual participation at that stage, there was immediately a clear attempt by others to control the process, by seeking to introduce multiple one- sided stipulations and rules of engagement, which I felt demonstrated a premeditated closed-minded approach that only continued to waste my time. Something, that as a first time business-starter, I knew I simply could not afford, particularly as the associated issues had already come at an enormous cost to my relationship with my parents, as well as other goals and interests over prior years. As such, after more sessions with minimal progress, I eventually 'demanded' that I be allowed to Chair a group meeting, and be remunerated accordingly, in the hope this would focus people's efforts, and force them to value my time. Notably, despite both of these requests being declined, I still agreed to attend such a group meeting, that was chaired by the Mediator. Finally, at the end of that final session of the process (where I was not told in-advance that it would be the last), I was the sole family member that remained sitting at the table with the Mediator, after all others involved had stormed-out of the room in anger, when I had chosen not to agree to their desires, on what I 'now know' was their required time-frame. Given the 'storm-out' was initiated & led by Mark, I can only surmise that he was adopting a similar forceful-type approach, that he has regularly stated he's employed over many years when involved in his formidable work disputes with the "Waterfront (Wharfie) Unions". As such, I hereby request that His Honour consider providing a further extension of time for the formal Defence submissions in this matter, given the limited professional costs of doing so at present, particularly without the need to parties to attend court. I do so in the clear understanding that their have been a multitude of reasons for the slow progression of this matter by various other parties involved (ie. Executors, both sets of Trustee Lawyers, an Insurance Company, etc), and in the belief that this would continue to be a far cheaper and efficient alternative for all parties, than would be required in any re-lodgement or appeal process. Yours Sincerely, David A. Hulme. P.S. - I have also forwarded an email trail (below) of my correspondence with the estates executors, regarding a life insurance policy my father paid into over forty years, as further evidence of my attempts at constructive assistance regarding matters of the estate."
On 23 February 2023, the Defendant sent an email to the Court and to the Plaintiffs' solicitors, in the following terms: "Dear Associate, I write to convey that I am simply too unwell to attend court this morning. This is due to ongoing effects of the acute Gastroenterological illness noted in my last correspondence on 25/01/2023. Please extent (sic) my apologies to his Honour accordingly. I will however remain contactable by mobile telephone 0412 197 932 so the matter may proceed. Health Update I continue to suffer from the effects of an acute Gastroenterological illness (since mid-December). This has been further exacerbated (since my email of 25/01/2023) by a secondary issue of a severe inter-related 'Abscess', which ruptured on 12/02/2023, resulting in admission to my local Hospital Emergency Department that night. As a result of the serious risk of Sepsis (a potentially life-threatening complication) the surgeons advocated to undertake an emergency operation. Unfortunately, given the nature of the operation, the wound would be left open to heal from the inside-out (ie. unstiched [sic]). As this would have had a high likelihood of causing separate complications and/or infections when inter-twined with the ongoing Gastroenterological symptoms, I did not agree to this emergency surgery, and instead had to settle for a slower treatment via additional antibiotics (Keflex 500mg), which appears to have been mostly successful. Unfortunately this has not address the Gastroenterological symptoms, for which I will seek further hospital admission as soon as I can organise it (likely within 24-48 hours), unless an ambulance becomes necessary in the interim. Based on couple of previous instances of similar circumstances, I expect this may result in a 1-3 week admission, with a likely potential for approximately 5-7 days of nil-by-mouth to allow for necessary investigations. Case Documentation While understanding I will need to resubmit this information in the appropriate format for formal court submission, I have attached copies of two documents to this email, with the aim that doing so may provide some further insight and thereby allow for continued progress in the overall matter. These are:- Boat Sale / Valuation - A letter to Anchorline Brokers. Late Robert Hulme Medical - A letter to Dr. Ian Tang (Haematologist). Yours Sincerely, David Hulme."
Following receipt of that email, my Associate, at my request, sent an email (which bore the time 10:04 a.m.) in the following terms to the Defendant and to the Plaintiffs' solicitors: "This email is sent on behalf of his Honour Dear Mr Hulme, Please join the Teams Link below if possible: [Microsoft Teams Link included in email]"
When the matter was called, it was clear that the Defendant was connected to the Court's audio-visual link system. However, neither his camera nor his microphone appeared to be engaged. On this occasion, the Court made the following orders and directions: 1. Directs each party to file and serve written submissions identifying the documents upon which it is intended to rely by 4:00 p.m. on Monday, 27 February 2023. 2. Reserves the costs of today. 3. Stands the notice of motion over for hearing before the Succession List Judge at 10:00 a.m. on Tuesday, 28 February 2023.
Prior to the directions being made, attempts had been made by the Court, via Microsoft Teams Chat, for Mr Hulme to be able to appear. The following Chat messages occurred: "Associate (10:22 a.m.): Mr Hulme are you able to hear the Court? Associate: Mr Hulme if you are having difficulties could you please advise? Associate: Mr Hulme are you able to hear the Court? Mr Hulme (10:24 a.m.): I can see the Bar table on my screen, but am having difficulties with the camera & sound. Associate (10:25 a.m.): Could you attempt to reconnect? If you could try and turn your camera on and check your microphone is working? Mr Hulme (10:26 a.m.): I will do so. I am readily available on 04## ### ###. Associate (10:28 a.m.): His Honour is on the Bench and has asked you to connect. David (Guest) left the chat. (10:32 a.m.)"
Following the directions made in Court, my Associate, at my request, sent an email (which bore the time 11:10 a.m.) in the following terms to the Defendant and to the Plaintiffs' solicitors: "This email is sent on behalf of his Honour Dear Mr Hulme, His Honour made the following orders in the matter today: 1. Directs each party to file and serve written submissions identifying the documents upon which it is intended to rely by 4:00 p.m. on Monday, 27 February 2023. 2. Reserves the costs of today. 3. Stands the notice of motion over for hearing before the Succession List Judge at 10:00 a.m. on Tuesday, 28 February 2023. His Honour has indicated that the matter will be heard on Tuesday. No application for an adjournment based upon unverified email correspondence will be considered. The matter will proceed in person in Court 10D at 10:00 a.m. You should be present or be represented on that occasion."
On 24 February 2023 (at 4:59 p.m.), the Defendant sent email correspondence to the Court stating: "Dear Associate, I have received your email below relating to yesterdays court orders, including the short-notice of a 'hearing-date' set for next Tuesday 28 February, 2023, being 4 days (2 business days) from now. That is, despite there being no opportunity for telephone communication input from myself, when the last minute Microsoft-Teams meeting invitation to the court did not work. As such, I hereby provide notice that I do not expect I will be "in a position" to comply. I can only imagine that His Honour had not seen or had an appropriate opportunity to reflect on my prior email correspondence, particularly from yesterday morning, or alternatively I was not adequately clear in outlining my immediate health situation (perhaps due to an automatic inclination towards personal medical privacy). I reiterate that I have been extremely unwell for the last 2 months (since mid-December 2022). This has included:- A month-long primary acute 'parasitical-type' gastroenterological illness. This triggered a secondary underlying chronic-condition (life-threatening). An additional tertiary 'complex-Abscess' issue (potentially life-threatening). A complex inter-relationship between 2-&-3 above (increasing potential of life-threatening). Severe ongoing pain and symptoms, similar to those expected of acute conditions such as chronic-gallstones, chronic-appendicitis, or a twisted / constricted / perforated bowel, etc. Significant related weight-loss and loss of standard healthy muscle mass. Absence of usability of any useful pain-relief medication due to risks of exacerbating issues. I therefore have-&-continue to be acutely-focused on physical 'SURVIVAL' … not 'legal strategy'. As such, this situation has significantly impeded my ability to prepare for this case over that time, and will no doubt continue to do so for the immediate future, including sourcing, funding, or adequately-briefing any legal representative to 'reasonably be able to act on my behalf in the short-term. I also, again make recognition of the overall frustrations of the slow progress of this matter, and reiterate my contention that the vast majority of those have resulted from choices made by other associated parties, rather than myself. Accordingly, I suggest a reconsideration of the associated time-frames set out in yesterdays orders for this matter would appear sensible, albeit recognising your statement that "No application for an adjournment based upon unverified email correspondence will be considered". Sincerely, David A. Hulme."
The Court responded (at 5:09 p.m.): "This email is sent on behalf of his Honour Dear Mr Hulme, His Honour has been shown your email. The matter remains as listed on 28 February 2023. Any application may be made by you at the hearing of the matter which will proceed in Court. Please note his Honour is not sitting in Hospital Road but is sitting in Court 10D of the Law Courts Building."
The history of the matter, as set out above, demonstrates delay, as well as a certain reluctance by the Defendant to disclose relevant information.
There can be no suggestion that the Defendant could suffer a denial of procedural fairness from the consequences, and effect of altering the nature of the hearing, as it was made clear to him that the hearing was one to determine the notice of motion.
There is one other matter that is relevant on the adjournment application. Suzette is 79 years of age and has had several health issues including significant periods of hospitalisation and recovery from surgery.

The Law - adjournment application

Section 66(1) of the Civil Procedure Act, relevantly, provides that subject to rules of court, the court may, at any time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. The Court also has an incidental power, to afford the Defendant another opportunity to provide a Defence and the evidence upon he may wish to rely.
In City of Sydney Council v Satara [2007] NSWCA 148 at [17], the Court of Appeal wrote: "Section 66 of the Civil Procedure Act 2005 empowers the Court, subject to the Rules of Court, at any time and from time to time to adjourn to a specified day any proceedings before it or any aspect of such proceedings. This is a "wide and ample" power to adjourn the hearing of any matter, the principal consideration being what is necessary to do justice between the parties: Sydney City Council v Ke-Su Investments Pty Ltd [1985] 1 NSWLR 246 at 252 per Kirby P; Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 (at 39) Farwell J ("the court has an inherent power to direct that any matter which comes before it should stand over for a period if the court thinks that that is the proper way to deal with the matter")."
The approach the court should take, when applying case management provisions of the Civil Procedure Act, is to strike a balance between the competing needs of the parties and determine whether, on balance, justice demands that a party should be given an indulgence (or in the present case, a further indulgence). The ultimate aim of the court is to do justice. In doing so, the Court must consider the position of both parties.
Perhaps, the failure of the Defendant to have legal representation has exacerbated the problems that he has faced. Yet, as was stated in Knorr v CSIRO (No 3) [2012] VSC 529, by Beach J at [28]: "Again, as was said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd '[t]here comes a point at which a self-represented litigant must be required to take responsibility for his choices'. Consistently with the principles enunciated in the Civil Procedure Act, Mr Knorr cannot be permitted to continue to subject the parties to this proceeding to significant cost and inconvenience and to add pointlessly to the load on the Court's already limited resources." (Omitting footnotes).
In Alesco Corporation Limited v Te Maari [2015] NSWSC 469 at [34], I noted that the Defendant, in that case, was unrepresented, and concluded that this fact, alone, does not mean, "they should be treated... with greater consideration than litigants who are legally represented".
As was written in Duraisamy v Sydney Trains [2019] NSWCA 269, by Bell P at [25]: "I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court's endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep): 'the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.'"
(An application for special leave to the High Court was refused as the application concerned matters of practice and procedure and the application of settled principles. There was no reason to doubt the correctness of the Court of Appeal's judgment: Duraisamy v Sydney Trains [2020] HCASL 8.)
Naturally, in determining the application for an adjournment, the Court must have regard to the obligations imposed by ss 56 to 60 of the Civil Procedure Act 2005 (NSW): Rafailidis v Camden Council [2021] NSWSC 1087 at [17] (Robb J); Golovanov v McGrath Property Management Pty Ltd [2022] NSWSC 177 at [45]-[46] (Ierace J).
Section 56 emphasises that the overriding purpose of the Act and the rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings. The court is required to give effect to the overriding purpose when it exercises any power given to it by the Act or by the rules of court. Section 57 in turn requires the court to have regard to specified matters. Section 58 requires the court, in deciding whether to make any order or direction for the management of the proceedings, to act in accordance with the dictates of justice, and the court must have regard to the provisions of ss 56 and 57.
Also, the Court must consider the effect of an adjournment. As the majority of the High Court noted in Sali v SPC Ltd (1993) 67 ALJR 841, at 843; [1993] HCA 47 at [11]: "In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v. Rogers ((4) (1979) 27 ALR 330, at p.337.) this "may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing". What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources".
As was observed in Aon Risk Services Australia Pty v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at 182 (French CJ), the time of the court is a publicly funded resource and "[I]nefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be considered. So too is the need to maintain public confidence in the judicial system."
In UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45, at [38], Kiefel CJ, Bell and Keane JJ wrote: "The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the [Federal Court Act] [corresponding to s 56 of the Civil Procedure Act]. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the "just resolution" of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the [Federal Court Act]. Integral to a "just resolution" is the minimisation of delay and expense. These considerations inform the rejection in Aon of the claimed "right" of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate."

Determination of the adjournment application

I have already noted the date and time of the Defendant's email which has been treated as a belated, and informal, application to adjourn the hearing. Practically speaking, it was sent a matter of hours before the hearing was to commence.
The copy document that was attached to the email was one headed "Medical/Attendance Certificate", dated 27 February 2023. It was said to certify that the Defendant "has been an inpatient from 25/02/2023 to current" of Royal North Shore Hospital. The Certificate which followed stated that "he/she will be unfit for work/school/usual activities from 25/02/2023 to 03/03/2023". The person who appeared to have signed the Certificate was Kathryn Pearson and was described as a "Resident Medical Officer". (Needless to say, she was not available for cross-examination.)
I observe that nowhere on the copy Medical Certificate to which I have referred, was the nature of the Defendant's medical condition referred to. There is also an absence of any matter demonstrating how the author reached the conclusion that she expressed therein. Importantly, the sentence "He/she was treated for (optional)" was left blank. (I have earlier referred to the Defendant's diagnosis of his condition in the prior emails.)
What is stated in the Medical Certificate suggests that Dr Pearson may not have been fully, or properly, informed about the purpose of the certificate, and, therefore, did not appreciate that it is no easy task for a court to not proceed to hear a case on the date it is fixed for hearing. One would have expected a medical practitioner, properly informed, to apply some thought to the way in which a medical certificate directed to that objective might be expressed.
The untested opinion of a medical practitioner in a pro-forma, and incomplete, medical certificate, is not sufficient, of itself, to secure the adjournment of the hearing. The opinion expressed was not supported by any appropriately verified evidence. The symptoms, the diagnosis, the degree of any alleged condition from which the Defendant is said to be suffering are not identified. There was no explanation given going to the nexus, if any, between the unspecified medical condition from which the Defendant is said to be suffering and his asserted inability to appear at the hearing. All these matters are left to the imagination of the reader.
As was written by Barrett J in Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [22]: "All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything."
A medical certificate relied upon to demonstrate a litigant is unable to attend court should address the "critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing": NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, at [6] (Lindgren J), referred to, with apparent approval, in Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139, at [221] (McColl JA (Simpson JA and Sackville AJA agreeing).
In AHB v NSW Trustee and Guardian [2014] NSWCA 40, at [4], it was noted that the Court will not ordinarily act on "a formulaic document" and will usually require an explanation, on oath, from the medical practitioner of the illness and the reasons for the litigant's inability to attend Court.
Furthermore, bearing in mind the contents of the Defendant's email, one might have thought that "the experienced Sydney based lawyer whose firm specialises in Estate Law", who is said to have been contacted, might have been retained to meet with the Defendant, or, at least to appear, on his behalf, if only to seek an adjournment. (I put to one side the number of occasions, prior to 28 February 2023, that the Defendant was encouraged to obtain legal assistance.)
Finally, there was an absence of any information indicating when the Defendant might become available to attend an adjourned hearing if the hearing date were to be vacated. In this regard, the last paragraph of the Defendant's email is relevant.
Overall, what has been presented to the Court, by way of email correspondence, and the Defendant's disorderly, unverified, and in some cases, somewhat extravagant, assertions therein, does not give the Court any confidence that an adjournment will lead to his case becoming any more precise or him being able to advance a proper defence to the claim for Probate of the 2017 Will. He has not identified, with any precision, from where his evidence would come, which also might be thought to be telling when the time that he has had to present his case overall is considered. In other words, it was not apparent that an adjournment would serve any useful purpose.
In my view, the email from the Defendant, sent a few hours before the matter was to be heard, with the uninformative and inadequate medical certificate, which has little probative value, seeking a further adjournment, this time of the hearing of the Plaintiffs' notice of motion filed in December 2022, and without a clear indication of how such an adjournment would result in anything else being done, must be considered in light of the history of the proceeding and the conduct of the Defendant.
The Defendant could have been left in no doubt, in December 2022, and then again in February 2023, that further delay in relation to these proceeding would not be tolerated by the Court other than for very sound reasons. He must also have been aware that if he, or someone on his behalf, did not attend, the hearing was likely to proceed in his absence.
In considering the application for an adjournment, naturally the issue of procedural fairness has been considered. However, it is to be remembered that in Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92, Newnes JA, with whom Pullin and Murphy JJA agreed, wrote at [51]: "... It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period." (Omitting citations)
Whilst it cannot be said that there was an immediate urgency to have the application heard, it has been over 2 years since the death of the deceased, over 1 year since the initial application for the removal of the caveat, and over 3 months since the notice of motion was filed. Whilst the Defendant has been unrepresented, the Plaintiffs have appeared throughout and have, no doubt, incurred legal costs. They also incurred the costs of legal representation at the hearing of the notice of motion.
Additionally, the Court was not satisfied, bearing in mind the nature of the proceeding, that to grant the Plaintiff's application could be properly compensated by an order for costs, even if those costs were calculated on the indemnity basis.
It would not be fair to the Plaintiffs, against the background of the proceeding, to delay a determination of the notice of motion. In all the circumstances, I did not accede to what I had treated as the Defendant's application for an adjournment stating that I would provide reasons as part of the determination of the Plaintiffs' application.
I then proceeded to hear the notice of motion.
Following the conclusion of the hearing, at my request, my Associate sent an email to the Defendant, with a copy thereof to the Plaintiffs' solicitor (which bore the time 4:44 p.m.), in the following terms: "This email is sent on behalf of his Honour Dear Mr Hulme, His Honour has asked me to advise you that what you sent to the Court and the Plaintiffs' solicitor was treated as an application to adjourn the matter, which application was refused with reasons to be provided. The notice of motion was heard thereafter this morning and the Court has reserved its decision."
On the day before these reasons were to be published, the parties were informed of the Court's intention to do so. At the date of publishing these reasons, no response has been received to the Court's emails, from, or on behalf of, the Defendant.

The notice of motion

The Plaintiffs' notice of motion was filed on 8 December 2022. They sought the following relief: 1. An order that Probate in solemn form of the 2017 Will be granted to the Plaintiffs. 2. An order that the matter be remitted to the Deputy Registrar for the purpose of completing the grant in accordance with the Probate Rules. 3. An order that the Defendant pay for the Plaintiffs' costs, calculated on the indemnity basis. 4. Such further and other order that the Court deems necessary.
Because of the way in which the proceeding continued, as set out above, it was possible to list the notice of motion for final hearing.
In taking that course, and at the hearing, the Court has required the Plaintiffs to prove their claim so far as the burden of proof lies upon them. Whilst the failure of the Defendant, who does not plead to the allegations in the amended Statement of Claim founds deemed admissions of the allegations therein (see Ward v Ward [2011] NSWSC 107 at [28]), I have read the evidence so that the Court can be satisfied that the orders that are sought are appropriate. In other words, I have not relied upon deemed admissions. The evidence has been read so that the Court can be satisfied that the orders sought are appropriate.
In support of the notice of motion, the Plaintiffs read several affidavits and tendered some documents. There was a copy of an email dated 20 December 2022 from the Plaintiffs' solicitors to the Defendant identifying the amended Statement of Claim and the affidavits upon which the Plaintiffs intended to rely: Ex NM6.
I shall refer principally to the evidence read that seems highly unlikely to be the subject of real dispute.
The Plaintiffs first referred to the Amended Statement of Claim filed on 20 September 2022. The principal claim for relief was for an order that Probate in solemn form of the 2017 Will be granted to them and consequential relief. (Other alternative claims for relief were sought in relation to other Wills, but considering the claim for relief in the notice of motion, those claims for relief do not require elucidation.)
The original of the 2017 Will was tendered as Ex NM1. It is the last Will in time executed by the deceased. There was no suggestion that the 2017 Will had been revoked by the deceased. The original of the 2017 Will remains on the Court file.
The deceased made several other Wills, the original of some of which was also tendered. In reverse date order, there was a Will dated 3 February 2005 (Ex. NM2), a Will dated 2 March 2000 (Ex NM3), and a Will dated 13 June 1991 (Ex. NM4). (There are other original Wills, even earlier in time, held in the Court file to which reference was not made and which were not marked as exhibits. Those Wills have been retained on the Court file.)
The Wills that have been tendered appear to be reasonably consistent in terms of the disposition of property. There does not appear to have been significant changes, or departures, from the long adhered to testamentary intentions reflected in the Wills. In all of them, Suzette appears to be the principal beneficiary. The main differences in the Wills relate to the identity of the executors and trustees, as the Defendant was removed as executor and trustee in the 2017 Will, and there are some adjustments made as to the nature of the provision made for Braddon directed towards purchasing a residence for him. The amounts of pecuniary legacies may have altered.
The evidence reveals that the value of the actual estate of the deceased is not large. The principal asset is the former matrimonial home which was held by Suzette and the deceased as joint tenants, and which passed by survivorship to her. In addition, the inventory of property disclosed shares in Perenti, Bluescope, Commsec BHP, and a trustee company, Marbrada Investments Pty Ltd; two boats, one being a Nereus MTR Cruiser and the other being a Yamaha RV; a Mitsubishi Verada car; law books; clothing; personal effects; and various tools. There was also a disposition of any entitlement under the Robert Hulme Superannuation Fund.
The degree of commonality of the beneficiaries between the various Wills that the deceased made, and the relationships to him, in my view show the 2017 Will (and indeed the others) to be rational on its face. It was not suggested that persons naturally having a claim on the deceased's bounty have been excluded.
The Plaintiffs read an affidavit of Patricia Varnava, a solicitor, who was one of the attesting witnesses to the deceased's signature on the 2017 Will. They also read an affidavit of Ann Lockley, whose occupation was not disclosed but who was referred to as "retired", the other attesting witness to the deceased's signature on the 2017 Will.
These two affidavits, when considered with the 2017 Will, itself, satisfy me that: 1. The 2017 Will is in writing and was signed by the deceased; indeed, there could be no issue about whether he had signed the Will. 2. The signature on the Will was made by the deceased in the presence of two or more witnesses present at the same time. 3. The two witnesses attested and signed the 2017 Will in the presence of the deceased and in the presence of each other.
It follows that the 2017 Will was duly executed in accordance with s 6 of the Succession Act.
Clause 2 of the 2017 Will appointed the Plaintiffs as the executors and trustees of the Will.
The Will bears an attestation clause which states: "SIGNED by the Testator as and for his last Will and Testament in the presence of us, both being present at the same time who at his request in his sight and presence and in the sight and presence of each other have hereunto subscribed our names as witnesses."
The Plaintiffs also read an affidavit of the executors sworn by Suzette on 17 December 2021 and by Mark on 12 December 2021. This affidavit satisfied me that: 1. Ms Varnava published an online notice of the Plaintiffs' intention to apply for a grant of Probate on the New South Wales Online Registry on 2 July 2021 and waited at least 14 days from the date of publication to file the Summons for probate which they did on 23 December 2021. 2. The deceased's Death Certificate, which disclosed Mark as the Informant, revealed that the cause of death was "Metastatic melanoma, 1 year". 3. The value of the deceased's actual estate is modest, although the value of property held jointly with Suzette is significantly larger.
I have earlier referred to the Defendant having lodged a caveat and that caveat having lapsed by the effluxion of its six-month duration.
Mark affirmed an affidavit on 8 December 2022. To that affidavit was annexed a copy of a document headed "To my Children and to my Executors and Trustees". It is a typewritten document and was said to be "a letter intended to be read with, but is not part of, my Will".
I shall not set out the terms of the document, but it appears to have been carefully crafted. It concludes with the following: "I do not know when my will will take effect. I cannot know what the future may hold for you all. All I can say is that in the circumstances as I presently seen them I have drafted my will the best way I know in order to give effect to all of the factors I have mentioned. I wish I could do more. … (Printed 13/6/17 from RSH Letter to Executors on Computer")
The last paragraph states that the Will referred to was drafted by the deceased himself. That would be powerful evidence of actual knowledge and approval of the contents of the Will. That there is a reference to the same date as the 2017 Will enables the Court to infer that it is to that Will to which the deceased was referring.
Whilst the Defendant's allegations appear to be quite unfocussed, and some difficult to understand, the course adopted was to deal with the substance of the matter, disregarding the substantial formal defects. I have treated the allegations as relating to a lack of testamentary capacity and a lack of knowledge and approval.

The Law

As I have repeated: "The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost." See: Wharton v Bancroft [2011] EWHC 3250 (Ch), at [9] Norris J.
In Tatchell v Glavimans [2007] WASC 321, EM Heenan J wrote at [9]: "To prove a will in solemn form, there must be sufficient evidence which establishes the validity of the will in question. In Wheatley v Edgar [2003] WASC 118, after examining the authorities, I canvassed the minimum requirements necessary to establish validity and thereby enable the grant of probate in solemn form. Essentially, what is required is adequate proof of due execution of the will ... This in turn involves a determination, on the evidence adduced, as to the testamentary capacity of the deceased at the time of the will..." (Omitting citations)
In Lim v Lim [2022] NSWSC 454, at [416]-[418], I referred to the relevance of an attestation clause: "It is not essential for a will to have an attestation clause: s 6(3) of the Succession Act. However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Succession Act. Although not conclusive, an attestation clause constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80]. In A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed, 2021, London, Sweet and Maxwell) at [3-035], it is written that an attestation clause facilitates acceptance of due execution. Whilst it raises a presumption that the will was duly executed, by itself, it is not conclusive. However, it is also written that a formal attestation clause in a will, regular in form, raises a strong presumption, which presumption can only be rebutted by cogent and reliable evidence that the will was not duly executed. In other words, the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064 at [71]."
I also referred to the law in relation to testamentary capacity at [340]-[349], [351]-[353] and at [358]-[371] as follows: "It is convenient to remember, by way of preamble, what was written in Croft v Sanders [2019] NSWCA 303 at [126] (White JA, with whom Bathurst CJ and Gleeson JA agreed): "…Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument." ("Inofficious" in this context means where no provision, or an apparently inadequate, or unfair, provision, is made for those who ought to be the objects of the will-maker's bounty: McNamara v Nagel [2017] NSWSC 91 at [263] (Robb J).) Thus, how the elements for testamentary capacity would be regarded as having been established, must vary according to the factual circumstances, that is to say the test is time, situation, person, and task, specific: Choy Po Chun v Au Wing Lun [2018] HKCA 403 at [23] (Cheung, Yuen, and Kwan JJA); Bailey v Bailey at 570 (Isaacs J). This requires a consideration of the particular will-maker, and the particular medical, or mental, conditions, she or he is suffering under in the particular situation. The degree of complexity of the will-maker's affairs and her, or his, testamentary intentions, will also directly affect the level of cognitive function required to make a testamentary instrument. As has been written, the test of capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton [2005] WTLR 99 at 109; [2004] EWCA Civ 1554. What was written in Banks v Goodfellow remains well settled and has proved sufficiently flexible to take account of developments, particularly in medical understanding. The statement of principle has been described as "a durable formulation" which "has withstood the test of time": Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449 at [82], [66]. It has also been described as the "classical exposition": I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co) at [306]). Banks v Goodfellow does not require perfect mental balance and clarity in the deceased (at 566 (Cockburn CJ)). Importantly, it is to be noted that in Banks v Goodfellow, reference is made to the "understanding" or "comprehension" of the will-maker. That is not a reference to what he, or she, actually remembers, but rather, is a requirement that he, or she, has the capacity to understand and comprehend such matters: Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40] (Lewison LJ). Thus, the will-maker should have the capacity to understand the nature of the act of making a will and the extent of his, or her, property, but also comprehend and appreciate the claims to which he or she ought to give effect. This is a matter that is often forgotten by parties in probate cases. Importantly, what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether he, or she, in fact, made the judgment about his, or her, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate: Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159] (White J); King v Hudson [2009] NSWSC 1013 at [51] (Ward J)). As was written in Simon v Byford at [40], by Lewison LJ: "capacity depends on the potential to understand. It is not to be equated with a test of memory…". Thus, comprehension and appreciation of the calls on a will-maker's bounty does not require actual knowledge of other gifts that have been made to, or the financial circumstances of, a potential object. The will-maker does not have to have all the facts with which to make a correct, or justifiable, decision; he, or she, must have the capacity to decide for himself, or herself, between competing claims. That means that he, or she, must have the ability to inform himself, or herself, about those claims, to the extent that he, or she wishes to do so, but not that he, or she, must remember the relevant facts about each of the potential objects or have correctly understood their financial circumstances.
In a proceeding such as the present, whilst the Court should not ignore an issue such as a lack of testamentary capacity once raised, in Re Levy deceased (No 2) [1957] VR 662 at 665, Sholl J, stated that it is not: "the duty of the Court to make its own investigation of all the facts when an application is made to it for a grant of probate in solemn form. There is, so far as I can see, no ground for saying that on such an application the Court comes under any duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will for which probate is sought."
In Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, Isaacs J set out relevant principles which have been frequently applied and discussed. (Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment.)
I set out the relevant statement of principles by his Honour, omitting from that statement, reference to authorities. his Honour wrote (at 528): "(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it."
It is difficult to ascertain from the unfocussed, and prolix, documents provided by the Defendant, what facts he asserts reasonably require investigation, or what other documents require inspection, before a determination can reasonably be made as to whether the 2017 Will was the last will of a free and capable testator. Naturally, the Court has conducted a vigilant examination of the whole of the evidence read at the hearing.
However, this is a case in which there is an apparently rational will, duly executed by the deceased. I have identified the evidence going to proof of due execution, which is consistent with the physical appearance of the 2017 Will, which bears three different signatures and an attestation clause.
In addition, the 2017 Will is the last Will, in time; it was prepared by the deceased himself; a willmaker who, until the year before he prepared the Will, had been a sitting Judge of the Supreme Court. The Court should be satisfied as to its validity.
The letter from the deceased demonstrates that he was a strong and decisive person, as well as someone who was concerned to do the right thing, as he understood it to be. His decision, apparently unaided, to make a new will, and then explain, in writing, to family members, his reasons, demonstrate that he was not hampered by mental incapacity.
Furthermore, there is no suggestion that any person taking a benefit under the 2017 Will played any part in its preparation. This is evidenced by the statement of the deceased that he had drafted the Will.
The existence of an apparently rational will, duly executed, of itself, is enough to cast on the person who opposes the making of a grant of probate, an onus of adducing evidence to suggest that there is a basis for not making a grant. That may include evidence of a lack of testamentary capacity or a lack of knowledge and approval. The Defendant has not done this. He has not advanced any cogent evidence to suggest that the deceased's mental functioning was impaired in 2017.
What he has produced also does not raise any suspicion about the deceased's capacity or his knowledge and approval of the 2017 Will. Indeed, I have not read anything that suggests that the 2017 Will did not truly represent the deceased's testamentary intentions; or, that he did not know and approve its contents. One might think that, at a minimum, there would need to be demonstrated a matter occasioning doubt about the validity of the disputed Will.
Finally, the Defendant's non-compliance with the Court's directions, over a long period of time, is clear. There is no basis to assume that the non-compliance, throughout the period that the matter has been before the Court is accidental, or because of circumstances that, objectively, might justify the continuing default. He has not adduced any factual evidence to support the unverified allegations or to contradict the Plaintiffs' evidence. There is no credible evidence that he will be able to do so in the future.
I am satisfied that the Plaintiffs are entitled to the grant of Probate of the 2017 Will as the executors named in it. The Plaintiffs should be saved from further cost, delay, and vexation.

The issue of costs

I turn then to the issue of costs.
In both written and oral submissions, counsel for the Plaintiffs sought an order that the Defendant pay their costs calculated on the indemnity basis of the proceeding. They relied upon the Defendant's repeated failures to follow proper court procedures and to comply with court orders, as well as his unfounded allegations of fraud and misconduct on the part of the Plaintiffs.
Counsel submitted that the Defendant's continual agitation of a 'formally undefined' and 'hopeless' case, including the seeking of multiple adjournments and extensions, had caused the Plaintiffs significant trouble and expense. Citing Rose v Richards [2005] NSWSC 758, counsel reminded the Court that the fact that the Defendant was a self-represented litigant should not prevent the making of an order for indemnity costs against him.
When the Court inquired about the Defendant's practical ability to meet such a costs order, counsel indicated that his financial circumstances were unknown, and that she had no instructions on the question, but that there may be other practical ways that the family could deal with the matter.
The prima facie rule in probate litigation is that costs follow the event. However, costs may be paid out of the estate if the litigation has been caused or contributed to by the way in which a willmaker has made his, or her, testamentary intentions known, or alternatively by the conduct of the beneficiaries. Also, where the willmaker is not the cause of the litigation, but circumstances exist that reasonably call for an investigation, there is either no order as to the unsuccessful party's costs or costs are paid out of the estate. For reasonable grounds calling for an investigation to exist, it must be established that when a proceeding was commenced, all proper steps were taken to inform the challenger as to the facts of the case and having done so, the challenger has been led reasonably to the bona fide belief that there were good grounds for impeaching a will. If there is no reasonable cause for investigation, that is, if the unsuccessful party has not acted reasonably, then costs will usually follow the event: Re Papavasiliou; Theofanous v Aizen (No 2) [2023] VSC 118 at [14] (McMillan J).
I summarised the principles in Chant v Curcuruto (No 2) [2021] NSWSC 882 at [32]. I shall not repeat what I wrote in that case, but I have borne the principles in mind.
In relation to the application for costs calculated on the indemnity basis, in summary, such an order can usually be justified because, in the circumstances, it would be unfair, or unjust, to require the successful party to bear costs calculated on the ordinary basis, or where there may be some special, or unusual, feature in the case to justify the Court in departing from the usual order. The question will be whether the particular facts and circumstances of the case warrant the making of an order for costs other than on the ordinary basis.
If a party's conduct is relied upon, the conduct which falls to be assessed in determining whether an indemnity costs order should be made is that which relates to the proceeding in which the order is sought.
The categories of case in which the discretion to award costs calculated on the indemnity basis may be properly exercised are not closed. However, the mere existence of facts and circumstances capable of warranting an order for costs calculated on the indemnity basis does not mean that the Court is obliged to make such an order, as costs, ultimately, remain in the discretion of the Court. Each case stands on its own, and one of the factors to consider is the Defendant's lack of representation.
In determining the issue and remembering that the Defendant has been self-represented, it is to be noted that in years past, courts have generally been reluctant to order indemnity costs against a self-represented litigant. For example, in Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13], Hodgson CJ in Eq wrote: "… I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event."
Of course, what was written should not be understood as implying that indemnity costs will never be appropriate against a litigant in person. In Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311, Meagher JA, at [9] - [10], wrote: "Where indemnity costs are sought against a litigant in person, the Court ought to consider the competing interests identified by Hodgson CJ in Eq in Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159. … This Court has made orders against litigants in person for the payment of indemnity costs where their proceedings were "obviously doomed to fail" and the litigant maintained the proceedings after having been informed of that fact, or of a procedural defect in the formulation of their claim: Reimers v Health Care Complaints Commission [2013] NSWCA 366 at [23] per Barrett JA (Macfarlan and Meagher JJA agreeing). See also Martin v State of New South Wales (No 6) [2011] NSWCA 281 at [8]."
Bearing in mind what has been written earlier about cases involving self-represented litigants, it seems to me that the time has come for courts to overcome a reluctance to order indemnity costs against such litigants, particularly if he, or she, advances a patchwork of unfocussed complaints, which puts the other party to significant cost, and where, as here, the party has been urged to seek legal assistance and has not established that he lacks the financial means to do so, so that an application for pro bono assistance could be considered. The fact that a litigant chooses to represent himself, or herself, should not exempt him, or her, for that reason alone, from exposure to an order for costs calculated on the indemnity basis.
As enshrined in s 56 of the Civil Procedure Act 2006 (NSW), the Court has a duty to all parties to ensure that proceedings are conducted in a fair and timely fashion and without significant delay and unnecessary expense.
In this case, whilst I do not think that the Defendant has engaged in this litigation, necessarily, to advance his own interests, or has opposed the Plaintiffs' application with some ulterior motive in mind, and whilst there is an element of public interest in ensuring the last valid will of a willmaker is the subject of a grant of Probate, he has resolutely maintained the belief, and has made many varied, and unrestrained, allegations, upon which he is fixated, that the Plaintiffs are not acting in the best interests of "the family". That, of course, does not go to the issue of the validity of the 2017 Will.
Whilst allowances must be made in recognition of the difficulties faced by an unrepresented litigant and his, or her, lack of expertise, the procedural history referred to above demonstrates that the Court provided many opportunities to him to do what was required.
Furthermore, I have not read anything advanced by the Defendant, that would lead me to conclude that he was justified in maintaining his opposition, for as long as he has, to the grant of Probate of the 2017 Will being made to the Plaintiffs. Having seen a copy of the 2017 Will, the affidavits of the attesting witnesses, and having received, and considered, the deceased's letter, he should have reflected upon the Plaintiffs' case and determined that he should not maintain his opposition and, therefore, was at risk as to costs if he continued in the way that he did. In maintaining his position, and failing to comply with numerous directions, in circumstances where he did not file an Appearance, or a Defence, he has put the estate to significant cost.
Initially, the Defendant asserted that he had not been provided with some documents. For that reason, in the directions hearing of 14 June 2022, the Plaintiffs were directed to provide him with a copy of any will made by the deceased in their possession, custody or control. There is no suggestion that they did not comply with the direction. By 24 August 2022, the Defendant had a copy of the letter written by the deceased, to which reference has been made. The affidavits of each attesting witness were filed 14 October 2022 and 10 December 2022 and were included in the list of affidavits upon which the Plaintiffs intended to rely, as set out in a letter from E Berman & Co, dated 20 December 2022 and tendered as Ex. NM6, that was sent to the Defendant by email.
In my view, the Defendant should pay the Plaintiffs' costs, calculated on the indemnity basis, from 31 January 2023. Otherwise, he should pay their costs, calculated on the ordinary basis, of the proceeding. It will be a matter for the Plaintiffs whether they enforce that order against him. If they choose not to enforce the costs order, or if the Defendant does not satisfy the costs orders, the Plaintiffs' costs, calculated on the indemnity basis should be paid out of the estate of the deceased.
The Court: 1. Orders that the Will dated 13 June 2017 of Robert Shallcross Hulme ("the deceased") be admitted to probate. 2. Orders subject to compliance with the Probate rules of Court that probate in solemn form of the Will dated 13 June 2017 of the deceased be granted to the Plaintiffs, Mark Shallcross Hulme and Suzette Rosila Hulme, the instituted executors named in the deceased's Will. 3. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 4. Orders that the Defendant pay the costs, calculated on the indemnity basis, of the proceeding, from 31 January 2023; otherwise, he should pay their costs, calculated on the ordinary basis, of the proceeding. 5. Orders that to the extent that any costs are not recovered from the Defendant, the Plaintiffs' costs, calculated on the indemnity basis, be paid out of the estate of the deceased.

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: 31 March 2023

(Uniform Civil Procedure Rules 2005(NSW)

Civil Procedure Act 2006(NSW)

Civil Procedure Act 2005(NSW)ss 56, 57, 58, 59, 60, 61, 66(1), 66(3)

Uniform Civil Procedure Rules 2005(NSW)r 1.2, 6.1, 6.9, 6.10, 7.36, 14.3, 35.6, 35.7B

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