Proposed Plaintiff v Proposed Defendant

1 The plaintiff's wife died on 1 June 2014 leaving a written will. On 12 September 2016 the Court granted probate to the defendant who is a daughter of the deceased and the plaintiff. The will did not make any provision for the plaintiff but left all of the estate to the deceased's children. The estate included a half share as tenant in common with the plaintiff of what had been the matrimonial home at 68 Ford Street, Ivanhoe and an investment property at Unit 3, 64 Ford Street, Ivanhoe.

2 On 24 March 2017 the plaintiff filed a summons by which he sought:

(a) orders that would have the effect of setting aside a previous transfer of the Ford Street properties by the plaintiff and his wife from ownership as joint tenants to ownership as tenants in common; or alternatively

(b) an order under s 91 of the Administration and Probate Act 1958 for an order that provision be made of out the estate for his proper maintenance and support.

3 That application was heard on 4 September 2017. The plaintiff had retained solicitors and was represented by counsel. No application was made at that time to revoke the grant of probate and indeed the application proceeded on the assumption that the will was valid.

4 The plaintiff's application for orders that would have the effect of setting aside a previous transfer of the Ford Street properties by the plaintiff and his wife from ownership as joint tenants to ownership as tenants in common was dismissed but he succeeded in his application that provision be made out of the estate for his proper maintenance and support. On 14 December 2017 the Court ordered, in substance, that the plaintiff have a life interest in the property at Unit 3, 64 Ford Street, Ivanhoe. The plaintiff was unsuccessful in his application to obtain a larger share of the estate and in particular an entitlement to the 68 Ford Street property. The plaintiff applied for leave to appeal to the Court of Appeal. The plaintiff had pro bono assistance at the appeal. The appeal was limited to the disposition of the application under s 91 of the Administration and Probate Act 1958. Again, the appeal proceeded on the assumption that the will was valid. On 18 March 2019 the application for leave to appeal was dismissed.

5 The plaintiff, who is now unrepresented, has since sought to commence further proceedings by way of originating motion. In the most recent form, he seeks to file an originating motion dated 15 May 2020 where the relief or remedy sought is as follows:

1. The will of my wife should be declared invalid. She was on heavy medication at the time she signed the will and did not know what she was signing.
2. The Executor never carried out her duties properly following the death of my wife. Many lies were told about me. My daughter caused a $50,000 loss to the family by not renting out our second house and leaving it vacant.
3. I looked after my wife for approximately nine years under she finally passed away.
4. I want my daughter's name removed from the title of the house. I built the house myself many years ago. I have an established vegetable garden and fruit trees which supplied organic food for my wife as recommended by her doctor.
5. My health is not good. I have a facial cancer which is to be operated on. I have to look after myself.
6. My daughter has not visited me since I included her name on the title.[1]

6 Rule 27.06 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') relevantly provides as follows:

Prothonotary refusing to seal or accept document

(1) The Prothonotary may refuse to seal an originating process without the direction of the Court where the Prothonotary considers that the form or contents of the document show that were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court.

...

(3) The Court may direct the Prothonotary to seal an originating process or accept a document for filing.

7 The Prothonotary refused to accept the originating motion for filing and notified the plaintiff of that decision by letter dated 10 June 2020. The Prothonotary had previously refused to accept for filing an originating motion dated 5 March 2020 and had sent the plaintiff a letter dated 21 April 2020 explaining that decision. The letters, which are to be read together, explain that the Prothonotary has refused to accept the 15 May 2020 originating motion on the basis that it seeks to re-litigate matters that were already determined in the previous proceeding or to litigate matters that could have been but were not raised in that proceeding and thus was irregular and an abuse of process.

8 The Prothonotary has advised the plaintiff that if he were to amend the proposed originating motion in order to remove the claim that the will was invalid, and to limit it to a challenge to the conduct of the executrix in administering the estate, then she would accept the originating motion for filing.

9 The plaintiff has now applied under r 27.06(3) of the Rules to a Judge of the Supreme Court for a direction that the Prothonotary seal the proposed originating motion or accept it for filing.

10 As noted above, the plaintiff asserts in paragraph 1 of the proposed originating motion that his wife was on heavy medication at the time that she signed the will and did not know what she was signing. This is, in essence, an application for an order that the grant of probate be revoked. Under r 11.02 of the Supreme Court (Administration and Probate) Rules 2014, an application for the revocation of a grant of representation (which concept includes an order granting probate) is to be made by summons in the proceeding in which the grant was made. Accordingly, it was an irregularity to seek to make this application by originating motion - involving the commencement of a separate proceeding - and the Prothonotary was correct to refuse to accept the originating motion, and I will not make a direction that she do so.

11 Further, r 5.05 of the Rules requires that an originating motion specify the relief or remedy sought and the Act, if any, under which the claim is made. Paragraphs 3 to 6 in the proposed originating motion do not identify even by implication any relief or remedy sought or any cause of action, and at best relate to issues that might have been relevant on the concluded testator's family maintenance application. I am not concerned with whether some amended form of the originating motion may be acceptable but am concerned with the document as presently formulated.[2] I consider that the proposed originating motion is irregular and embarrassing by reason of the inclusion of paragraphs 3 to 6, and this is a further reason for which I will not direct the Prothonotary to accept the proposed originating motion for filing.

12 The reason set out in paragraph 10 above is not the reason for which the Prothonotary refused to accept the originating motion for filing in so far as it challenged the validity of the will. In so far as the originating motion contended that the will should be declared invalid, the Prothonotary reasoned that such a claim would be an abuse of process because it would have been open to the plaintiff to make such a claim in the earlier proceedings and referred the plaintiff to Port of Melbourne Authority v Anshun Pty Ltd ('Anshun').[3]

13 It is not necessary for me to decide whether this was a sufficient reason to refuse to accept the proposed originating motion. Anshun establishes a form of estoppel where a party is estopped from presenting an argument in subsequent litigation that is so closely connected with earlier litigation that it was unreasonable not to have presented it in that earlier litigation. There is much to be said for the Prothonotary's approach: it is remarkable that the plaintiff, only now, seeks to agitate that his wife did not have testamentary capacity when she executed her will, when such an argument ought to have been presented at or prior to any argument about whether she had sufficiently provided for him in her will. However, the issue is to be determined on the basis that what the plaintiff seeks to contend is or might be correct unless there is no possibility that the plaintiff will succeed.[4] On the basis of the material presently to hand, it is difficult to conclude that there is no possibility that the plaintiff could establish that his wife lacked testamentary capacity at the relevant time.

14 Further, Anshun estoppel, like other estoppels, is fact dependant, and ultimately based on the reasonableness of the behaviour of the party sought to be estopped.[5] It may not be applied where there are 'special circumstances'.[6] Whether an Anshun estoppel would apply in the circumstances of this case could well depend on matters such as, assuming for the moment that there is available some evidence that the plaintiff's wife did not have testamentary capacity when she executed her will, when and how the plaintiff first came to be aware of this. If the plaintiff acted reasonably yet did not discover that his wife arguably lacked testamentary capacity until after the earlier litigation, then an Anshun estoppel may not go.

15 In this respect, I note that if the plaintiff elects to bring such an application by summons filed in the proceeding in which probate was granted, he will have to file affidavits in support that set out the basis for his claim and, presumably, an explanation for why he participated in a proceeding that was premised on the existence of a valid will when he now contends that the will was executed when his wife did not have testamentary capacity. Depending on the strength of that material, the defendant to that claim may or may not apply to have the application stayed as an abuse of process. Nothing in this judgment is intended to foreclose these arguments.

[1] The paragraph numbering has been added.

[2] Little v State of Victoria (Supreme Court of Victoria, Gillard J, 17 June 1997) 19.

[3] [1981] HCA 45; (1981) 147 CLR 589.

[4] Little v State of Victoria (n 2).

[5] Timbercorp Finance Pty Ltd (in liq) v Collins [2016] FCA 44; (2016) 259 CLR 212, 229 [27], 236-7 [56] (French CJ, Kiefel, Keane and Nettle JJ), 245 [97] (Gordon J).

[6] See, eg, Port of Melbourne Authority v Anshun (No 2) [1981] VicRp 9; [1981] VR 81, 89 (Young CJ, Anderson and Brooking JJ); Stuart v Sanderson [2000] FCA 870; (2000) 100 FCR 150, 158-9 [29]-[31] (Madgwick J); BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221, [30] (Carr, Tamberlin and Conti JJ).