Martin v Matthews [2021] NSWSC 1040 | Case summary

Supreme Court of NSW|2021-08-12|Before: Hallen J, Powell J

Background Facts

I have taken the following facts from the affidavits as I consider that there is unlikely to be any substantial dispute about them: 1. The deceased died in August 2020. He died leaving no spouse or issue. 2. The Plaintiffs, being father and son, were friends of the deceased. Each knew the deceased for over 20 years. The Plaintiffs also assisted the deceased with the completion of tasks around his home, for which they were paid. 3. Mr Matthews was a friend of the deceased and Mr Martens was the deceased's godson. Each had known the deceased for more than 50 years. 4. The Death Certificate, a copy of which was in evidence, revealed the causes of the deceased's death to be "I (a) Myocardial infarction, immediate, (b) coronary artery disease, 18 years", and "II Hypertension, 20 years, diabetes, 18 years". The deceased died only a few months after the Will was made. 5. The Informant on the Death Certificate was Mr Gregory Martin.

The facts relied upon by the Plaintiffs

The facts relied upon by the Defendants

The Defendants pointed to the following evidence. Again, none of the deponents was cross-examined and I treat what is set out as evidence that has not been tested: 1. Each of the Defendants had maintained continued contact with the deceased, until his death. Both gave evidence of regular telephone contact with the deceased throughout 2019 and 2020. The deceased was also invited to the wedding of Mr Martens' son in 2020 (which was cancelled due to COVID-19 restrictions). 2. The deceased told Mr Matthews, on multiple occasions, including in July 2020 (after the making of the 2020 Will), that the Defendants would inherit the Whale Beach property. 3. The deceased made similar statements to Mr Martens, including in May 2020 (after the making of the 2020 Will). 4. The deceased was accompanied by the first Plaintiff, a beneficiary named in the 2020 Will, to the office of the solicitor, Mr Butt, who prepared the 2020 Will. 5. The two appointments for taking instructions and executing the 2020 Will occurred during the COVID-19 lockdown restrictions, in early 2020. 6. The 2020 Will was a significant departure from the deceased's testamentary intentions, as evinced in the 1992, and in the 2009, Will. Whilst this was recognised by Mr Butt, what was said to have been done was to "chat with [the deceased] generally about current affairs". 7. The deceased did not tell either Defendant that he had made the 2020 Will. He had informed them of having made his previous Wills. 8. From late 2019, the deceased had difficulty remembering the names of Mr Matthews' wife and where Mr Matthews lived. 9. By early 2020, the deceased was becoming forgetful and confused, forgetting names, asking vague questions, and telling repetitive stories. 10. No medical examination of the deceased was carried out and Mr Butt did not ask the deceased any questions to determine whether he had testamentary capacity. For example, there is no evidence, in the contemporaneous diary note made by Mr Butt, that he had asked any questions about the deceased's knowledge of his assets. Thus, it was not known whether the deceased had capacity to understand the extent of the property of which he is disposing. 11. The deceased's stated reasons for removing the Defendants from the 2020 Will (being that "I rarely heard from them anymore, I have not seen them for ages and they only telephone me when they want something") was disputed. This statement was said to be inconsistent with the evidence that the Defendants were in regular contact with the deceased. (They gave examples of telephone contact and the conversations, none of which demonstrated that either had wanted anything from the deceased.) Thus, it was not known whether the deceased had the capacity to be able to comprehend and appreciate the claims to which he ought to give effect.

Determination

At the risk of repetition, I note that the 2020 Will is the last testamentary document executed by the deceased. I note, also, that there is no dispute about the validity of the 2009 Will (other than its revocation by the 2020 Will).
Even if the case presented by the Plaintiffs, with the evidence of Mr Butt, solicitor, at its heart, were regarded as strong, a grant of probate in solemn form is not inevitable. Reading all of the evidence, which has not yet been tested, and which is clearly incomplete on both sides, and hearing the submissions, result in me being satisfied that there is a doubt which warrants investigation going to the validity of the 2020 Will on the basis of a lack of testamentary capacity and a lack of knowledge and approval.
In particular, I note: 1. There is some evidence that, by the end of 2019, and the beginning of 2020, the deceased was becoming forgetful and confused. 2. There is no medical evidence, advanced by either of the parties, which goes towards establishing that the deceased did, or did not, suffer from any condition which might have affected testamentary capacity at the time he gave instructions for, and executed, the 2020 Will. Each of the conditions referred to in the Death Certificate may be a medical condition relevant to the issue of testamentary capacity. 3. The devise of the Whale Beach property in the 2020 Will other than to the Defendants, or one of them, is inconsistent with statements said to have been made by the deceased to one, or both, of the Defendants, to the effect that they would receive that property on the death of the deceased. 4. The omission of the Defendants entirely as beneficiaries is also inconsistent with the terms of the 2009 Will. The terms of the 2020 Will constituted a significant departure from the terms of the 2009 Will and from the 1992 Will and the 1998 Codicil, at least so far as one, or both, of the Defendants is concerned. 5. There is no evidence that Mr Butt asked the deceased, when taking instructions for the 2020 Will, about his assets, liabilities and knowledge of the people who had a claim on his bounty: Tcpt, 12 August 2021, p 06(29-33). 6. There was no evidence of the relationship between "Jenny Martin", the substitute beneficiary, and the deceased. The circumstances in which she came to be included in the 2020 Will are not explained. 7. The deceased's stated reason for removing the Defendants from the 2020 Will set out in Mr Butt's diary note was contradicted by the evidence of each Defendant, that he was in regular contact with the deceased up until the time of the deceased's death. 8. The deceased's description of the Defendants as "distant" may, or may not, be an accurate one. 9. There is currently no evidence that the other beneficiaries named in the 2009 Will were "distant". They were clearly not "deceased". 10. There was no evidence of either of the Defendants wanting something from the deceased. 11. There was no evidence of the ages of either of the Plaintiffs. All that is known is that Mr Gregory Martin is the father of Mr Liam Martin. Accordingly, it is not known whether he could be described as "the younger generations". 12. The other attesting witness of the 2020 Will, who would have observed the deceased, had not made an affidavit that was read on the notice of motion.
In the circumstances, I am satisfied that the matter should proceed to a hearing. However, I wish to make it clear, as I did during the hearing of the notice of motion, that the matters referred to above which in my view require investigation, should not lead the Defendants to be unduly optimistic about their ultimate prospects of success. Nor should they think that they will, necessarily, be entitled to their costs out of the estate even if they lose the substantive case.
As I endeavoured to do at, and before, the hearing, I stressed that the practice of the Court in a case seeking a caveat cease to be in force is not to decide the ultimate issue as to the validity of the disputed will. Naturally, I have not undertaken such an exercise, and being satisfied that a doubt exists should not be taken to imply any judgment as to how any doubt is likely to be resolved at a final hearing. The Court is simply satisfied, based upon the current state of the untested evidence, that the Defendants have established that there are matters that should be investigated. The Court has not formed, and could not form, any view of either party's ultimate prospects of success.
It was also necessary for me to deal with the costs of the notice of motion. As earlier stated, the Plaintiffs, in the notice of motion, sought an order for costs. As a result of the matter proceeding in the way that it has, the administration of the estate has been delayed and costs have been incurred.
In my view, the Plaintiffs did not make a realistic assessment of the Defendants' case on the issue to be decided at the hearing of the notice of motion. During an early directions hearing, I referred counsel, perhaps presumptuously, to my decisions In Estate of Theresa Katalinic; Vea & Katalinic v Katalinic and in The Estate of Robyn Alice May Linworth, and reminded them of what was required to be determined by the Court on the notice of motion.
Even during the hearing, I repeated, several times, the matters previously raised on the issue. The Plaintiffs, by counsel, persisted with arguments, which it seemed to me, went to the ultimate merits, rather than focussing on whether the Defendants' evidence, if true, called for further investigation.
It seems to me, depending upon the facts of the particular case, that, a person who files a caveat before making full enquiries has to make up his, or her, mind when he, or she, is doing so, that he will pay the costs of the caveat if he is not in a position to carry it further when an application is made for an order absolute, or if he, or she is otherwise unsuccessful. Similarly, a party who brings, and persists, with a notice of motion seeking to have a caveat cease to be in force, without considering, realistically, whether, on the evidence advanced by the caveator, a doubt exists, should also be prepared to pay any costs occasioned by that notice of motion should he, or she, be unsuccessful.
In exercising the discretion on costs, and remembering that the successful party has a "reasonable expectation" of being awarded costs against an unsuccessful party, there is the underlying proposition that costs should be paid in a way that is fair, having regard to what the Court considers to be the responsibility of each party for the incurring of the costs.
In the circumstances, I formed the view that as the determination of the notice of motion is a separate issue, which they have lost, the Plaintiffs, personally, should bear the Defendants' costs of the notice of motion. The costs of the hearing of the notice of motion would not have needed to be incurred if the Plaintiffs, following receipt of the Defendants' evidence, had consented to the matter proceeding by way of pleadings.
At least some of the work that has been done by, or on behalf of, the parties, pursuant to the directions of the Court, will be relevant to, and, no doubt will be relied upon in determining, the question of the validity of the 2020 Will. This may reduce the quantum of costs that should be paid by the Plaintiffs, but that will be a matter for assessment, or agreement, in due course.
Being satisfied that the caveators have an interest in the deceased's estate and that there is doubt as to whether the grant of probate should be made of the deceased's 2020 Will, the Court does not order that the caveat cease to be in force.
The orders made at the conclusion of the hearing were: 1. Orders that the matter proceed by way of pleadings. 2. Orders that the Plaintiffs file and serve a Statement of Claim by 4:00 p.m. on Friday, 27 August 2021. 3. Orders the Defendants to file and serve any Defence and Cross-Claim by 4:00 p.m. on 10 September 2021. 4. Orders the Plaintiffs to file and serve any Defence to the Cross-Claim by 4:00 p.m. on 17 September 2021. 5. Directs the Plaintiffs to file and serve any further lay evidence in chief upon which it is intended to rely or in reply to affidavits served prior to 12 August 2021 by 4:00 p.m. on 10 September 2021. 6. Directs the Defendants to file and serve any further lay evidence in chief or in reply to affidavits served prior to 12 August 2021 by 4:00 p.m. on 10 September 2021. 7. Directs each party to file and serve any lay evidence in reply to affidavits served after 12 August 2021 by 4:00 p.m. on 24 September 2021. 8. Directs that: 1. any party wishing to serve a subpoena provide a draft thereof to the other party no later than 10 days before it is intended to be filed; 2. within 7 days of the receipt of the draft subpoena, the party recipient is to consider it and advise the party intending to issue the subpoena whether any additional documents, or categories of documents, should be included in the subpoena; 3. the parties, within 7 days thereafter, are to use their best endeavours to resolve any dispute as to the documents, or categories of documents, to be sought, to the intent that only one subpoena will issue to any person, or entity, on whom, or on which, the subpoena is to be served. 1. Directs in the event that documents are produced, and the subpoenas Registrar is informed, in writing signed by the legal representative of each of the parties, that the lay evidence is complete and that there is no objection to general access being granted, that the parties have general access to the documents produced on subpoena. 2. Orders that the matter be referred to private mediation. 3. Appoints 7 October 2021 before Mr C F Hodgson as the date for the mediation. 4. Directs that in the event that an in-person mediation is unable to occur on that date, the mediation is to proceed remotely with the parties to appear by Skype, other form of video-conferencing, by telephone or as otherwise agreed. 5. Directs, in the event that the matter is resolved, that any original affidavits required to be read and not already filed, together with original signed Consent Orders in hard and soft copy reflecting the resolution of the proceedings, together with the settlement checklist and index of affidavits to be read, be delivered to the Chambers of the Succession List Judge by 4:00 p.m. on 13 October 2021. 6. Orders that the costs of the mediator and mediation room, initially be paid out of the estate of the deceased, with liberty to any party to seek an order for such costs to be paid otherwise. 7. Orders that the notice of motion filed 25 May 2021 (as amended) be dismissed. 8. Orders that the Applicants on the notice of motion (the Plaintiffs) pay the costs, personally, of the notice of motion. 9. Stands the matter over for further directions before the Succession List Judge on Monday, 18 October 2021.

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: 23 August 2021

Judgment

HIS HONOUR: These reasons relate to the estate of Edwin Corbett York, (the deceased), who died on 31 August 2020, aged 82. They follow the hearing of a notice of motion, on 12 August 2021, to have a probate caveat cease to be in force. As that order was not made, the Court made an order dismissing the notice of motion, an order that the matter proceed by pleadings, and gave directions as appeared best for the just, quick and cheap determination of proceedings. These are the reasons for the making of the substantive orders.
The deceased left a duly executed Will made on 27 April 2020. I shall refer to this Will as the 2020 Will without any prejudgment as to its validity. The original of the 2020 Will was delivered to the Court pursuant to directions made on 5 July 2021 and remains on the Court file.
There are said to be other earlier Wills, and a codicil, made by the deceased, to which reference will be made later in these reasons. The validity of each is not the subject of dispute, other than each was said to have been revoked by a later Will.
On 20 November 2020, Gregory John Martin (Mr G Martin) and Liam John Martin (Mr L Martin), to whom I shall refer, together, as the Plaintiffs, filed a Summons for probate, in which they sought probate of the 2020 Will. Notice of their application had been published on the New South Wales on-line registry website on 8 October 2020.
Relevantly, the 2020 Will revoked all wills and testamentary instruments previously made (Clause 1); appointed the Plaintiffs as executors (Clause 2); made a gift of a motor vehicle to a person not a party to the proceedings (Clause 3); and then left the whole of the deceased's residuary estate to the Plaintiffs "jointly in equal shares" (Clause 4).
In the Affidavit of Executors affirmed on 17 November 2020, the Plaintiffs affirmed "We are not aware of any circumstances which raise doubt as to our entitlement to a grant of probate of the will of the deceased".
The deceased left property, most of which is in New South Wales. The Plaintiffs estimated the estate to have a total value of about $12.2 million. It is a large estate.
On 18 November 2020, Conrad Ian Martens (Mr Martens) and Scott James Matthews (Mr Matthews), to whom I shall refer, together, as the Defendants, lodged a caveat. The caveat was one that may be described as a "general caveat". It is the appropriate form of caveat to raise a ground of invalidity of a will or codicil, other than because of a want of due execution. A general caveat is one filed under Supreme Court Rules 1970 (NSW) Part 78 rule 66: Kyros v Stavrakis [2009] NSWSC 163 at [12] (White J).
A fresh caveat, in the same terms, was filed by the Defendants on 17 May 2021. In this caveat, they asserted that whilst they were not beneficiaries named in the 2020 Will, they were devisees of real estate, situated at Whale Beach Road, Whale Beach, New South Wales ("the Whale Beach property"), in the penultimate Will, made by the deceased, on 22 July 2009. I shall refer to this Will as the 2009 Will.
In the 2009 Will, the Plaintiffs were named as the instituted executors.
For probate purposes, and in a legal sense, each of the parties to these proceedings is a "stranger" to the deceased, that is to say, is not a blood relation of the deceased, or a person who is entitled to make a claim either in intestacy or under the will: Nolan v Nolan & Ors [2004] VSCA 109 at [74] (Ormiston JA).
Mr Trevor Butt, the Plaintiffs' solicitor, who had prepared the original of that Will, deposed, in an affidavit read at the hearing of the notice of motion, that the 2009 Will was destroyed, at his office, after the 2020 Will was made. However, a signed copy of that Will is available.
The Defendants wish to propound the 2009 Will. However, during the hearing of the notice of motion, it became clear that the Plaintiffs, as executors named therein, in the alternative to the claim for probate in solemn form of the 2020 Will, if they wished to, should propound a copy of the 2009 Will. They agreed to this course.
The deceased had made an even earlier Will, in September 1992, with a codicil to that Will made on 6 November 1998. In view of there being no dispute about the validity of the 2009 Will, it is unnecessary to refer further to the 1992 Will and the 1998 Codicil. All that is required to be said about that Will is that Mr Martens was a devisee of the Whale Beach property.

The current dispute

Faced with the caveat, the Plaintiffs could have waited for the caveat to lapse and, as long as the Defendants did not file a new caveat, or seek to extend the existing caveat, (a caveat lapses after 6 months), the grant could be made without Court proceedings. Similarly, the Defendants may have withdrawn the caveat as a result of negotiation between the parties.
However, as the Plaintiffs must have considered that the Defendants did not have a legitimate interest, or that there was no doubt whether the grant of probate should be made, they filed a notice of motion to have the caveat cease to be in force pursuant to SCR Pt 78 r 71.
The Plaintiffs filed the notice of motion on 25 May 2021. As well as seeking an order that the caveat cease to be in force, they sought an order for their costs.
(Prior to the hearing of the notice of motion, it had been agreed that the notice of motion, as filed, referred to the earlier caveat that had been lodged by the Defendants, which had remained in force for 6 months. Without objection, at the hearing, the notice of motion was amended to insert the date of the second caveat, being 17 May 2021, in lieu of the date of the first caveat, as that was the caveat which had not lapsed.)
In support of their notice of motion, the Plaintiffs, initially, relied upon an affidavit of Mr Butt, who annexed to his first affidavit affirmed on 25 May 2021, a copy of two letters from him to the solicitors for the Defendants requesting the removal of the caveat.
The notice of motion was first returnable in the Succession List on 2 June 2021. On that date, both parties were represented by counsel.
Despite the longstanding practice of the Court that, on the first return date of such a notice of motion, the caveator is expected to have available, and ready to be tendered, evidence "to show … in broad terms, that he had an interest to support the caveat and that he had a prima facie case of a ground of invalidity upon which he relied" (Nobarani v Mariconte (2018) 265 CLR 236 at [45]; [2018] HCA 36), and that in default of having such evidence available, the Court may have ordered that the caveat cease to be in force with the costs of the application being paid by the caveator (Azzopardi v Smart (1992) 27 NSWLR 232 at 238 (Powell J); D'Apice v Farrell (Supreme Court (NSW), Powell J, 15 May 1992, unrep)), the Defendants did not have available any such evidence.
Without objection, the Court made directions for them to file and serve any affidavit material on which they intended to rely in opposition to the relief sought by the Plaintiffs in their notice of motion. The costs of the directions hearing were, however, reserved.

Some matters regarding caveats

Section 144(1) of the Probate and Administration Act 1898 (NSW) provides that any person may lodge in the registry of the Court a caveat against any application for probate or administration, or for the sealing of any probate or letters of administration under Division 5, at any time previous to such probate or administration being granted, or to the sealing of any such probate or letters of administration. In fact, "any person" means any person with an "interest", as probate litigation is "interest" litigation: Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504 at [10] (Windeyer J).
It should be remembered that "a caveat is not a notice to any opponent in particular. The caveat does not commence any litigation. It is a notice to the registrar or officer of the Court not to let anything be done by anybody in the matter of the will, or the goods, of the deceased, without notice to the person who lodges the caveat. It is not looked at as commencing any litigation - it merely requests the registrar to tell the caveator if anybody stirs in this matter": Moran v Place [1896] P 214 at 216 (Lindley LJ); In re Emery, Deceased; Emery v Emery [1923] P 184 at 187-188 (Sir Henry Duke P); Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [60(5)] (Lindsay J).
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.
In The Estate of Robyn Alice May Linworth [2021] NSWSC 334, relevantly, at [25] - [32] and [37] - [57], I dealt with the principles relating to caveats. I wrote: "Part 78 rule 66 of the Supreme Court Rules, relevantly provides that a person who claims to have an interest in an estate may file a caveat in respect of any grant of probate or administration, being made in respect of the estate. The caveat must state fully the nature of the interest claimed by the caveator and an address for service. A copy of the caveat must be served on the applicant for probate or administration within seven days of the lodging of the caveat: A caveat takes effect when it is filed and, unless the Court otherwise orders, lapses after 6 months. The Court may extend the duration of a caveat: Supreme Court Rules, Pt 78 r 69… … What is described as a 'general caveat' is the appropriate form of caveat to raise a ground of invalidity of a will or codicil, other than because of a want of due execution. A general caveat is one filed under Supreme Court Rules, Pt 78, r 66. The Law There was no dispute about the legal principles that should be considered. As stated, I have referred to some of the principles in Katalinic. Part 78 r 71 of the Supreme Court Rules, relevantly, provides: (1) If-- (a) a person has applied or intends to apply for the grant of probate or administration or the resealing of a foreign grant, and (b) a caveat under this Division is in force in respect of any grant of probate or administration, or resealing of a foreign grant, being made in respect of the estate concerned, the person may apply for an order that the caveat cease to be in force in relation to the application or intended application. (2) An application under this rule must be made-- (a) except as provided by paragraph (b), by summons, or (b) if the person has commenced proceedings for the grant of probate or administration, or the resealing of a foreign grant, by notice of motion in the proceedings. (3) The caveator must be joined as a defendant in the proceedings on an application under this rule. (4) If the Court considers that the evidence fails to show-- (a) that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, and (b) that there is a doubt as to whether the grant of probate or administration should be made or whether the foreign grant should be resealed, the Court may order that the caveat cease to be in force in respect of the application. In this case, as the proceedings for a grant of Probate had been commenced, albeit by the executors separately, the matter proceeded, in each case, by way of notice of motion. It is clear from the rule referred to, that a caveator, relevantly, must show that: (a) she, or he, has an interest in the estate, or a reasonable prospect of establishing such an interest; and (b) there is a doubt as to whether a grant of probate should be made. The onus is on the caveator to establish both elements to the satisfaction of the Court. Mere speculation will not suffice and a caveat should not be filed in the hope that some evidence on which it could properly be supported in court might turn up. In relation to (a), whilst the Supreme Court Rules provide that 'a person' may lodge a caveat, probate litigation is conveniently called 'interest litigation'. The purpose of requiring a caveator to have a relevant 'interest' is to exclude meddlers and to reduce the risk of the estate facing the financial burden of unnecessary, and inappropriate, litigation, perhaps, by someone with limited, or no, funds available to meet any costs order that is made. In Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [49] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ), a unanimous High Court stated that a person will have a sufficient interest if she or he has a right which will be affected by the grant and that '[i]t is also legally erroneous to conclude that rights of low monetary value cannot amount to a legal interest'. The applicants made reference to Poulos v Pellicer; In the Estate of Culina [2004] NSWSC 504, in which Windeyer J had stated, at [15]: 'The sufficiency of interest is usually stated to depend upon whether the person seeking to challenge the document propounded will take a different, meaning greater, or even lesser, benefit in the estate if that document is not admitted to probate: Will of Adcock (1905) 10 ALR 268.' … In relation to the matter referred to in (b), the requirement has been referred to differently in the cases. For example, in Weinstock v Beck in the Estate of Weinstock [2007] NSWSC 193, Windeyer J wrote: 'If the caveator adduces some evidence that may cast doubt upon the validity of the will propounded or whether it is the last will then orders will be made that the matter proceed as a contested suit on pleadings. There is no requirement on the caveator to establish a prima facie case or a serious question to be tried; what has to be established is that there is reason to allow the matter to proceed as a contested suit.' A similar view was expressed by Bergin CJ in Eq in Konstantinou v Mazitelli [2010] NSWSC 576 at [19], where she referred to the necessity 'to be satisfied that there is something that would cast doubt upon the validity of the will that is propounded'. In Peterson v Spartalis (Supreme Court (NSW), Hodgson J, 7 April 1995, unrep), Hodgson J, at 13, considered the question in the terms posed by the then rule (that is whether there is some matter occasioning doubt) and added that the general approach is the same as cases where the question posed was whether a prima facie case as to invalidity has been shown. In Nobarani v Mariconte, at [45], it was said that what was necessary to establish was 'that [the caveator] had a prima facie case of a ground of invalidity upon which he relied'. In Katalinic, I described what would be required to be established as 'there are circumstances that warrant investigation as would reasonably require the matter to proceed as a fully contested suit before the Court should consider making a grant of probate in respect of the will (a doubt as to whether the grant of probate or administration should be made)'. Ultimately, as the rule provides, the Court needs to be satisfied that there is 'a doubt as to whether the grant of probate or administration should be made'. No attempt should be made to define, or explain, the word 'doubt'. The word is self-explanatory. However, it is to be noted that there is no qualitative, or quantitative, word of limitation preceding 'doubt', setting the degree of the strength, or quality, (such as reasonable, or real, or substantive) of the 'doubt'. Yet, common sense suggests that the doubt that is required should be more than fanciful, unreal, illusory, capricious, frivolous or conjectural. There is no way of measuring the doubt reached in any scientific fashion. What is simply required is a process of evaluation of all the available evidence in order to determine whether the Court is satisfied that there is a doubt as to whether a grant of probate should be made. As was written in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 by Basten JA at [47] (albeit in the context of a final hearing): 'To speak of there being a 'doubt' as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the Court.' The hearing of the Summons, or notice of motion, to determine the question whether the caveat should cease to be in force, generally, will not be the appropriate forum for resolving genuinely disputed factual issues. Nor does the Court determine whether the evidence, in isolation or taken together, justifies an inference of testamentary incapacity. Instead, the question is simply whether the caveator's evidence, if true, calls for further investigation, in this case, as to the testamentary capacity of the deceased. If so, resolution of the question of a lack of testamentary capacity is one for determination at a final hearing."

Martin v Matthews

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Cases Cited (14)