Plaintiff v Caveator

The plaintiff also deposes that, despite her searches, she cannot locate any will for the deceased and that, as his domestic partner, she is entitled to administer his estate and is also the sole beneficiary of his estate upon his intestacy.

1. The Assistant Registrar of Probates issued requisitions to the plaintiff on 23 April, 6 May and 8 May 2024. In answer to the requisitions, the plaintiff filed the following further affidavits:

(a) two affidavits of Susan Gail Sidebottom, one sworn on 26 April and the other on 3 May 2024; and

(b) two affidavits sworn by the plaintiff, one on 6 May and the other on 14 October 2024.

1. On 23 August 2024, the caveator filed her caveat, describing herself as the 'unregistered domestic partner' of the deceased. She filed the Caveator's Grounds on 31 October 2024, relying on the grounds in rr 8.06(2)(b) and (c) of the Probate Rules. The Caveator's Grounds particularise that:

(a) she moved into the deceased's Cranbourne property in 1994 where they remained living together until 2021;

(b) she is entitled to the deceased's estate on intestacy;

(c) she is better placed to administer the deceased's estate as the deceased's 'domestic partner or former domestic partner' of at least 30 years;

(d) the plaintiff was not in a relationship with the deceased, was not his 'domestic partner' and if she was in a relationship with him, it spanned a period shorter than two years prior to his death; and

(e) she was in a relationship with the deceased for 30 years and remained his de facto partner until his death.

1. The caveator has not sought to amend her Grounds, nor to file further particulars of them.
2. On 24 June 2025, the plaintiff made this application for summary judgment.

1. The plaintiff makes application for orders for summary judgment under s 63 of the CPA on the ground that the caveator's objection to the making of a grant has no real prospect of success for the reasons that she has no standing and she cannot establish a prima facie case to support the caveat. There is no doubt that the CPA and the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('SC (GCP) Rules'), which govern summary judgment applications, apply to probate proceedings.[3]
2. The test under s 63 of the CPA is whether the claim has a 'real' as opposed to a 'fanciful' chance of success.[4] Subject to s 64, the Court may give summary judgment under s 63 of the CPA if it is so satisfied. The authorities urge caution, and that regard be given to the overarching purpose under the CPA, when exercising the power to terminate a proceeding summarily, given that, in consequence, the party against whom summary judgment is given will be deprived of the chance to pursue their claim.[5] As such, the Court should only exercise the power where it is clear that there is no real question to be tried.[6]
3. Even if there is no real prospect of success of the claim, under s 64 of the CPA, the Court may nevertheless decline to give judgment summarily if:

(a) having considered the circumstances of the case, it determines it is not in the interests of justice to do so; or

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

1. Order 22 of the SC (GCP) Rules, which contains the procedural rules regulating applications for summary judgement made under the CPA, contemplates that the respondent to such application may show cause against it 'by affidavit or otherwise to the satisfaction of the Court'.[7] Although in Re Munro,[8] Derham AsJ described it as being 'incumbent upon the caveator to support its particulars by evidence',[9] given the SC (GCP) Rules allow for cause to be shown against summary judgment by affidavit or otherwise, it is possible that, in a rare case, the grounds of objection filed by a caveator and the particulars could suffice. Here, the caveator did not rely on any affidavits at the hearing of the application,[10] relying on the contents of the Caveator's Grounds alone.

1. Section 58 of the Administration and Probate Act 1958 (Vic) ('APA') allows the lodging of a caveat against the making of a grant of representation. The caveator must have standing, and must prepare and lodge the caveat in accordance with the Probate Rules. In a case of intestacy, as here, the grounds of objection may be stated in accordance with r 8.06(2) of the Probate Rules. The caveator must give particulars of the grounds of objection which establish their standing to lodge the caveat, but also a prima facie case before the application can proceed.[11]
2. In order to establish standing, a caveator must have a sufficient interest in the proceeding. Sufficiency of interest is established by showing that the caveator's rights will, or may, be affected if the grant of probate is made.[12] In substance that requires a caveator to show that they stand to benefit if their opposition to a grant succeeds.[13] This will usually be established by the caveator having a beneficial interest in a prior will, or under the intestacy provisions,[14] so that in defeating the grant, they stand to secure a benefit concordant with that interest.
3. Where a caveator's relationship with the deceased is not a relationship recognised by the laws of intestacy, they will lack standing to challenge a grant as they do not stand to benefit if the grant is defeated.[15] Standing is not made out because a caveator claims to be a 'whistle blower'. As was stated by Windeyer J in Re Culina; Poulos v Pellicer,[16] '[p]robate litigation is interest litigation. It is not to be undertaken or interfered in by outside busybodies.'[17]
4. The plaintiff submits that the Court should give judgment summarily on the basis that the caveator has no real prospect of establishing standing. She submits that the Caveator's Grounds contain admissions that she was not in a relationship with the deceased that is recognised by the laws of intestacy, and so lacks standing to lodge the caveat. The first admission is said to be the statement in the Caveator's Grounds that she remained living with the deceased 'until 2021'.[18] The second admission is said to be the statement in the Caveator's Grounds as follows:
   1. As the domestic partner or former domestic partner of [the deceased]...[19]

The plaintiff submits that, assuming these facts as included in the Caveator's Grounds are true, then the caveator does not meet the definition of 'unregistered domestic partner' contrary to the assertion in her caveat.

1. To determine whether a person is an 'unregistered domestic partner', and so potentially a beneficiary on intestacy, necessitates consideration of the provisions of the APA, and also the Relationships Act 2008 (Vic) ('RA'). Under the APA, where an intestate does not leave a child or other issue but does leave a 'partner', that partner is entitled to the whole of the intestate's residuary estate.[20] The word 'partner' is defined in the APA to include a person's 'domestic partner',[21] which is in turn defined to mean a 'registered' or 'unregistered' domestic partner.[22] The phrase 'unregistered domestic partner' is itself defined to mean:

a person ... who, although not married to the person:

(a) was living with the person at the time of the person's death as a couple on a genuine domestic basis (irrespective of gender); and

(b) either -

(i) had lived with the person in that manner continuously for a period of at least 2 years immediately before the person's death; or

(ii) is the parent of a child of the person, being a child who was under 18 years of age at the time of the person's death.[23]

The APA further directs, in s 3(3), that in determining whether a person is an unregistered domestic partner, all the circumstances of their relationship are to be taken into account including any one or more of the matters referred to in s 35(2) of the RA as may be relevant in a particular case.

1. The caveator bears the onus to show cause against the plaintiff's application for summary judgment. In the Caveator's Grounds, which is all she relies upon to show cause against the application, the caveator is obliged to set out a sufficient factual basis to support her assertion of standing. The plaintiff submits that, by the admissions in the Caveator's Grounds identified above, the caveator acknowledges that she is not the deceased's 'unregistered domestic partner' within the definition in the APA. This is because she has admitted that:

(a) she had not been living with the deceased continuously for a period of at least two years 'immediately before' his death; and

(b) she and the deceased were not living 'as a couple' immediately before his death.

The plaintiff further submits that nothing in the Caveator's Grounds raises facts relevant to the criteria in s 35(2) of the RA as they applied to her relationship with the deceased. She also submits that in so far as the caveator seeks to claim in the alternative that she remained the domestic partner of the deceased as at the date of his death (as opposed to being his former partner), she bears the onus of establishing facts showing the continuing domestic partnership until that date,[24] which onus she has failed to discharge. The plaintiff submits, therefore, that the caveator has no interest in the deceased's intestate estate and accordingly no real prospect of establishing standing_._

1. The caveator's written submissions repeat the statement that the caveator lived with the deceased for 'over 30 years', commencing in 1988. This appears to restate, as submission, the facts in the Caveator's Grounds which have been characterised by the plaintiff as admissions that she lacks standing. Nevertheless, the caveator submits, without further explanation, that she is in a better position 'to be executor of [the deceased's] intestate estate.' In oral submissions,[25] the caveator's counsel clarified that it is his client's case that the caveator was the deceased's domestic partner and remained so at the date of his death.
2. In the face of evidence filed by the plaintiff, which establishes that the caveator was no longer living in the same house as the deceased in the year before his death, the caveator fails to identify any facts which support her case that her unregistered domestic relationship with the deceased continued after that time. The facts raised by the Caveator's Grounds pre-date her having ceased living with the deceased. The balance of the caveator's written submissions, and much of the oral submissions, were directed to undermining the plaintiff's asserted relationship with the deceased. In doing so, in my view, the submissions fail to engage with the question of the caveator's standing. Without establishing her interest in the litigation, no matter how well founded her concerns about the genuineness of the relationship between the plaintiff and the deceased, the caveator can only be characterised as an 'outside busybody' or 'whistleblower'.
3. In oral submissions, the caveator's counsel asserted that the caveator was interested in the intestate estate, and so had standing, because she is a potential Part IV claimant.[26] The caveator did not cite any authority to support this asserted interest as one conferring standing to caveat. The plaintiff accepts that, as the former de facto partner of the deceased, the caveator might be able to bring a Part IV claim, however, she submits that she is unaware of any authorities that have considered the sufficiency of the interest of a potential Part IV claimant to caveat against the making of a grant in an intestacy. Rather, in those cases where it has been considered in relation to a will, the circumstances in which it has been held that a Part IV claim is an interest sufficient to confer standing are extremely limited. In this regard, Counsel for the plaintiff directed the Court's attention to the decision of McMillan J in Mataska v Browne,[27] in which her Honour, having surveyed the authorities in this and other jurisdictions, found that views differ as to whether Part IV claimants (or their equivalents in other jurisdictions) have a sufficient interest for the purposes of standing. Her Honour concluded, noting the differing circumstances of each case she considered, that while a contingent Part IV interest, without more, is insufficient to support standing, in certain cases, the reasonable prospect of a successful Part IV claim will suffice to confer standing.[28] Here, the plaintiff submits, the caveator does not particularise in the Caveator's Grounds any potential Part IV claim to justify her standing. Absent those particulars, the Court might assume the caveator has a contingent Part IV interest if she is the former de facto of such long standing as asserted, but 'without more', that claim is insufficient to support her standing in this case.
4. For the reasons given I am satisfied that there is no real prospect that the caveator will establish standing. For this reason alone, the caveat ought be dismissed, however, if I am found to be wrong, I would in any event dismiss the caveat on the basis that the caveator has failed to establish a prima facie case for the reasons that follow.

Has the caveator established a prima facie case?

1. The plaintiff seeks 'strike out' of the caveat pursuant to s 63 of the CPA. I take this to mean dismissal of the caveat. The plaintiff contends the relief should be granted because the caveator, by the Caveator's Grounds, fails to establish even a prima facie case. In other words, it is the plaintiff's contention that in so far as the caveator cannot establish a prima facie case, her challenge to the making of the grant can have no reasonable prospect of success. The caveator argued she had a prima facie case for investigation, as disclosed by her Grounds.
2. A caveator will have a prima facie case, if there is a 'case for investigation' or 'something to go on'.[29] The burden of establishing a prima facie case is relatively easy to discharge.[30] In making this determination, the Court is to assume that the allegations contained in the particulars to the grounds of objection are true. Whilst speculation will not suffice, the caveator does not need to prove the facts upon which they rely as a basis for their objection, nor do they need to satisfy the Court of the preferred inference to be drawn from competing facts. That is the task for trial. Further, the particulars of objection are not to be separately examined in isolation from each other. The Court must have regard to the 'overall narrative'.[31]
3. The plaintiff submits that the Caveator's Grounds are inadequate to establish a prima facie case. She submits that the Caveator's Grounds rise no higher than the bare assertions that the plaintiff 'was not in a relationship with the deceased',[32] and if she was, it was 'for a period of less than two years'.[33] I accept that the particulars set out in the Caveator's Grounds, when considered together, do not provide support for these assertions, which are essential to the Grounds. While the particulars (accepted as true) do establish that the caveator was in a relationship with the deceased for 30 years, or that she lived with him for most of that time, it does not follow from the acceptance of those facts that the plaintiff was not also in a relationship with him (whether overlapping or subsequently), or that she did not live with him for two years, or that the caveator has a better right to apply for the grant. There are no other identified particulars which aid the caveator in establishing these assertions. The lack of detail is not assisted by the confused references in the Caveator's Grounds to the caveator being both the current domestic partner and the former domestic partner of the deceased. I am satisfied that the particulars contained in the Caveator's Grounds are insufficient to establish any case for investigation of the grounds identified, that is:

(a) that the plaintiff does not stand in a relationship in which she seeks administration (ground raised relying on r 8.06(2)(b) of the Probate Rules); and

(b) that the caveator has a better right (r 8.06(2)(c) of the Probate Rules).

1. The caveator bears the onus of showing cause against the summary judgment application. As noted, the caveator could have filed evidence to show cause against it, utilising r 22.05 of the SC (GCP) Rules, but she has not done so. To show cause 'otherwise', she would have needed to file sufficiently particularised grounds of objection which put the plaintiff on notice of the case she has to meet. Here, the particulars given of the Caveator's Grounds would have needed more factual detail about the asserted relationships, such as particulars which might show inconsistencies with the plaintiff's evidence as filed in her response to the requisitions. It is not for the plaintiff to adduce evidence to defeat the Caveator's Grounds. Nor can the caveator rely, as she attempts to do, upon a text message allegedly sent by the plaintiff to the daughter of the caveator that is neither particularised in the Caveator's Grounds nor in evidence.[34] The only reference to the alleged text message is in her submissions. The caveator had ample time and opportunity to provide further particulars of the Caveator's Grounds, or to file additional evidence in response to the plaintiff's summary judgment application. She chose not to do so.
2. For the above reasons, the caveator's objection to the grant does not enjoy a reasonable prospect of success, and should be dismissed.
3. I am not satisfied that, in the circumstances of this case, there is any reason to order that the case should nevertheless continue to trial for the reasons set out in s 64 of the CPA. Neither party made any submissions to this effect.

1. For the reasons set out in this ruling, I am satisfied that the caveat must be dismissed.
2. The caveator is to pay the plaintiff's costs of and incidental to her application for summary judgment, with such costs to be taxed in default of agreement.

[1] Affidavit of Narelle Gaye Lindsey sworn 18 April 2024 ('Lindsey Affidavit').

[3] Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('SC (GCP) Rules') ord 22; Supreme Court (Administration and Probate) Rules 2023 (Vic) ('Probate Rules') r 1.05. See also Van Wyk v Albon [2011] VSC 120; Re Demeduik [2016] VSC 587; Gardiner v Hughes [2017] VSCA 167.

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

[5] Lysaght 40 [35] (Warren CJ and Nettle JA), 42 [40]-[42] (Neave JA).

[6] Lysaght 40 [35] (Warren CJ and Nettle JA).

[8] [2018] VSC 747.

[9] Re Munro [2018] VSC 747, [19] ('Re Munro').

[10] In this case, the caveator consented to orders made on 16 July 2025, which record in 'Other Matters' as follows:

For the avoidance of doubt, these orders do not provide the caveator leave to file additional material in support of their grounds of objection (such (sic) any affidavits) nor leave to issue any subpoena.

This order did not prevent the filing of affidavits in accordance with the SC (GCP) Rules.

[11] Re Przychodski [2016] VSC 781, [16].

[12] Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 [212]-[216], cited in Re Przychodski [2016] VSC 781 [17]. See also, Gardiner v Hughes [2017] VSCA 167; (2017) 54 VR 394, 417.

[13] Gardiner v Hughes [2017] VSCA 167; (2017) 54 VR 394, 418.

[15] Jewish National Fund of Australia Ltd v Bar-Mordecai [2020] NSWSC 384, [79]-[84].

[16] [2004] NSWSC 504.

[17] Re Culina; Poulos v Pellicer [2004] NSWSC 504, [10].

[18] Grounds of objection filed on 31 October 2024, [1] ('Caveator's Grounds').

[21] APA s 70B (definition of 'partner').

[22] APA s 3(1) (definition of 'domestic partner').

[23] APA s 3(1) (definition of 'unregistered domestic partner').

[24] See Chan v Mazurkiewicz [2015] WASC 432, [65] cited with approval in Jasarevic v Nesovanovic [2017] VSC 267, [16].

[25] And as summarised in the caveator's speaking notes.

[26] Transcript of Proceeding, Re the estate of Dunham (Supreme Court of Victoria, S PRB 2024 07585, Goulden AsJ, 4 September 2025) T26.27-T27.1.

[27] Mataska v Browne [2013] VSC 62 ('Mataska').

[29] Gardiner v Hughes (No 2) [2019] VSCA 198, [41]; Re Robustelle (No 2) [2023] VSC 72, [16]; Lehr v Matters [2024] VSC 640, [13] ('Lehr').

[30] Lehr [14]; Lynch v Perpetual Trustees Co Ltd [2022] VSC 702, [50].

[31] Gardiner v Hughes (No 2) [2019] VSCA 198, [82]-[83].

[34] The caveator filed two affidavits affirmed by her daughter shortly prior to the hearing. The plaintiff's solicitors objected to the affidavits being tendered at the hearing because of their late provision. The caveator did not press her reliance upon them.