• Inheritance (Family Provision) Act (SA) 1972 s8(2), referred to.
• Birkett v James (1978) AC 297;
• Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541;
• Holmden v Bitar (1987) 47 SASR 509;
• In the Matter of the Will of Clayton [1906] NZGazLawRp 33; (1906) 8 GLR 516;
• Nock v Austin [1918] HCA 73; (1918) 25 CLR 519;
• T.R.A.M.S. Pty Ltd v The Grand Hotel Pty Ltd (unreported, Judgment No. S4296, delivered 30 November 1993);
• Neilson v The Public Trustee (unreported, Supreme Court of NSW Probate Division, BC 9201888, del. 8 May 1992), applied.
• Re Coghlan [1948] All ER 68;
• Willis v Earl Beauchamp (1886) 11 PD 59;
• Mohan v Broughton [1889] P 211, discussed.
• Fulton v Andrew (1875) LR 7 HL 448;
• Hoffman v Norris [1805] 2 Phill Ecc 230n;
• Merryweather v Turner [1844] 3 Curt 802;
• Re Flynn [1982] 1 All ER 882;
• In the Estate of Edwards, Deceased (1981) 28 SASR 380;
• In re Goode (1890) 11 NSWLR (Eq) 281;
• Bramston v Morris (unreported, Supreme Court of NSW Probate Division BC 9303644, del 20 Aug 1993;
• Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, considered.

Appellant VICTOR RASHEED, IVY NAJAR, ALLAN HALAM RASHEED:

Counsel: MR NEVILLE MORCOMBE QC WITH MR MARK PICKHAVER - Solicitors: MORGANS SOLICITORS

Counsel: MR STEPHEN MATHWIN - Solicitors: KELLY & CO

Respondent SHANE ABRAHAM RASHEED, EMILE KEITH RASHEED & BRENTON ALLAN RASHEED:

Counsel: MR DAVID QUICK QC WITH MR STEPHEN RODER - Solicitors: CARPENTER & ASSOCIATES

On Appeal from JUDGE BOWEN PAIN (MASTER OF THE SUPREME COURT)

[1999] SASC 88

Millhouse J. This appeal arises out of unhappy differences in the Rasheed family.

The three appellants and the first respondent are children of the testatrix Haseba (or Hasiba) Rasheed who died on 2 December 1976. The other three respondents are the sons of the first respondent and the main beneficiaries, equally, under the grand-mother's will. Haseba Rasheed executed her last will on 19 March 1970. It was not proved until 7 November 1986. The appellants seek to have probate revoked and to share in the estate under intestacy. They took proceedings in the Supreme Court to that end on 23 January 1998. Some months after the proceedings were instituted the appellants found that the testatrix had made three earlier wills, in 1960, 1957 and 1954.

The family is Lebanese by race. William Abraham Rasheed, the late husband of Haseba (he was 20 years older than she) came out to Australia in the 1890s. He went back to the Lebanon after the First World War and married Haseba, then a girl of 16 or 17. They returned to Australia. There were four children of the marriage of whom the first respondent is the eldest. During the Depression in the 1930s William Rasheed was bankrupt: his business had failed. The family went to live in the Riverland. They lived in poor circumstances and worked hard. After the Second World War the family came back to Adelaide and set up in a delicatessen on the Glen Osmond Road.

The family was closely knit and worked very much as a unit. William Rasheed was in control. The children, when they were old enough to work, gave all their earnings to their father to be pooled for the benefit of the family. The three appellants say their father promised that after his and their mother's death they should share equally. That is contrary to Lebanese custom: the custom is for the male line to inherit.

Haseba was devoted to her family. She has been described as a shrewd woman. She could not read or write (although she learned to write her name). She was however numerate and worked effectively in the deli.

I have to be careful in what I say about the facts. Many are disputed by one side or the other. Nevertheless the outline I have given is commonly accepted.

Annexed to the summons which initiated these proceedings is a statement of claim. This is the relief claimed:-

"(a) an order that Probate of the said will of the Testatrix granted by this Honourable Court on the 7th day of November 1986 be revoked;

(b) a decree pronouncing against the said will dated the 19th day of March 1970;

(c) an order (in the alternative) that the terms of the said will of the Testatrix be varied to provide that each child should receive one quarter of her net estate;

(d) further or in the alternative to (a) above that the Court should make such other provision for them out of the estate of the deceased as is just in the circumstances;

(e) an account of profits in relation to the personal benefits gained by the Defendants as a result of administering the properties of the Testatrix, and or receiving personal benefits therefrom;

(f) costs out of the estate of the Testatrix on a solicitor and client basis;

It will be seen that, coupled with a claim for revocation of the probate of the will and a declaration pronouncing against it, is a claim under the Inheritance (Family Provision) Act (SA) 1972.

The coupling of claims for revocation of probate and relief under the Inheritance (Family Provision) Act has been expressly disapproved by Williams J in his memorandum relating to The Estate of Jolliffe Deceased (22 April 1998). His reasons are cogent. I accept the force of what he has written and am happy to follow his view. Our brother Williams' decision was not published until three months after the Summons in this action was taken out. Mr Neville Morcombe QC (with Mr Mark Pickhaver) for the appellants, told us that an application had been made to a Master to amend the Summons. The application was refused. Irrespective of anything else, the claims for the two distinct kinds of relief should not stand in the same proceedings.

The appellants complain that well before 1970 the testatrix' mental condition had so deteriorated that, even if she could not be described as senile, at least she lacked testamentary capacity. This is apart from her inability to read or write. They also complain that their brother, the first respondent, exerted undue influence over their mother. He lived with the parents and it was he who arranged for his mother to go to the solicitor to make her will. [All this, except that he lived with his parents, is denied.]

In February 1998 the Master made an order that the matter proceed on affidavits rather than by way of pleadings. With hindsight I suggest that this was a most unfortunate decision. There are now on the file affidavits from all the appellants, from several of the respondents and from others. Many facts are in dispute. They can be resolved only after oral evidence. The action really is in a mess. If it were to continue it should be on pleadings. The order for it to proceed on affidavits really has been counter-productive.

On 15 July 1998 the second, third and fourth respondents applied for orders:-

"1. For an order that the within proceedings be stayed.

2. In the alternative for an order dismissing that part of the plaintiff's claim which constitutes a claim against the estate under the Inheritance (Family Provision) Act."

After argument, the Master gave his decision on 16 September 1998. Unfortunately, although he rehearsed at some length the arguments of all counsel, he does not say which he accepted and which he rejected. At the end of his Reasons he merely says:-

"Having considered all of the matters put by Ms Shaw and Mr Pickhaver, I am persuaded on the basis of the undisputed evidence to which I have referred earlier that the plaintiffs' claim should be dismissed. Insofar as it is a claim for revocation of the Probate, it should not be encumbered with other actions. Insofar as it is an action for revocation of the Probate, I consider that it should be struck out.

2. The plaintiffs to pay the defendants' costs to be agreed or taxed.

I cannot find in his Reasons, the ratio decidendi for the Master's decision. I cannot work out upon what he exercised his discretion. As well, although the relief sought was that the proceedings be stayed, the Master has essayed to strike them out.

The one factor, which will be obvious to the reader patient enough to have come with me as far as this, a factor crucial, is that of delay. All these events are so long ago! It was almost 28 years after Haseba made her last will, almost 22 years after her death and over 11 years after probate before these proceedings began.

I now, to complete the story, must venture into disputed facts. There are different accounts of what happened after Haseba's death. The first respondent says he and his brother Allan and his sister Ivy (Victor, has lived for many years in the United States of America and was not in Adelaide) sat down and read the will. The others say Shakib merely told them of the contents. Be that as it may, Ivy and Victor soon after the death sought legal advice but neither did any more.

Shakib said, there wasn't enough money in the estate to pay the succession duties, so he did not take out probate until 1986. In the meantime he administered the estate as though it belonged, if not to him, then to his three sons. The sons assert that over the years they have spent a lot of their time, money and effort in improving the assets. They have changed their positions, they claim, in the belief that their inheritance from their grand-mother was undisputed.

In 1986 Shakib wanted to sell land, an estate asset, but he could not give title so he had to take out probate. That was attended to by the well known and respected Adelaide solicitor, Mr Max Basheer. The three executors were Shakib, Ivy and Allan. All three had to sign. They did so in Mr Basheer's office and in his presence. Ivy and Allan say they did not know what they were signing! It was not explained to them! They thought they were signing an agreement whereby each of them was to share in the rents from an estate property in Gouger Street (and in fact they each did for ten years thereafter receive from Shakib one-fifth of the rents). It was only when, late in 1996, Ivy went to make her own will and wanted to leave her share in the Gouger Street property to her children, that the title was searched and the appellant came to know the actual position.

Mr Morcombe argued that the Master should not have struck out the action: he should have allowed the appellants an opportunity to amend and to have their case tested at a hearing. As a rule, if amendment can cure defects in pleadings then amendment should be allowed. The point here is whether any amendment could "cure" so long a delay.

Mr David Quick QC, (with Mr Stephen Roder) for the respondents dwelt on the delay and argued that it is now too late for there to be a fair trial of the action. Mr Roder argued that the appellants, in the light of the three earlier wills, are not able to dispute the 1970 will and claim under an intestacy. They would first have to remove each of the earlier wills standing in their way.

Mr Roder argued that the appellants have no standing: that they cannot shew an intestacy, their claimed basis for standing, nor can they make out any interest under a relevant will.

Eventually I have come to the conclusion that the delay is just too long for there to be a fair trial. Amendment would be of no avail. There is no need to decide on standing. To use Lord Diplock's words in Birkett v James (1978) AC 297 @ 318, "... to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible."

Mr Quick spent a good deal of time developing his argument. He referred to several cases but I cannot forbear from quoting a passage in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 @ 551. Mr Quick said the passage embodied his argument: it was a top point!

"For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 'what has been forgotten can rarely be shown.' So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstances because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact has all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."

Mr Quick was quite right and there are many examples in the affidavits which bear his argument out. One such being that Ivy says she visited Mr Basheer's office only once: Shakib asserts she was there three times!

Mr Quick asked rhetorically how could anyone fix with certainty the time of a particular event which might shew Haseba was losing her faculties. Was it in 1970, or 1969 or 1972? Extremely difficult for anyone to pin-point now, events so long ago. The appellants say she began to deteriorate from the early 1960s: Shakib says not until 1974. After so long, it is pretty well impossible to decide.

Then there is the question of the execution in 1970 of the will. When this was being canvassed by counsel I felt obliged, in case they felt I should disqualify myself (they did not), to tell the Court that before 1964 when I went to the Bar, I had been for more than ten years a partner in the firm then called "Baker McEwin Millhouse & Co". For the last few years Mr Jack Rodolph Cornish (his second name was spelt "Rodolph", not "Rudolph" as the death certificate and all the papers in this case, say: "Rudolph" is a mistake) was also a partner. He joined the firm after the firm of Pickering Cornish & Lempriere Abbot disintegrated. When that firm broke up the partners took with them to their new firms their personal clients. [Mr Cornish also brought with him our brother Wicks as his articled clerk.] I notice that the wills of 1954, 1957 and 1960 which Minter Ellison have produced were all made by Pickering, Cornish and Lempriere Abbot. This is another example of the sort of knowledge which may have been lost: I may be one of the few who knows this history.

That brings me to the 1970 will. There is little doubt that Mr Cornish drew it. The original is in the probate registry but the Baker McEwin docket (as we called it - now, I expect, it would be called a file) has disappeared. So there is no written record by the solicitors of the making of the will. Fortunately one of the attesting witnesses, now Mrs Crook, has been tracked down but has no recollection of acting as witness to this will. All Mrs Crook can say is what Mr Cornish' practice was with regard to the execution of wills he had drawn. I need not set it out but for myself I remark that Mr Cornish was upright, meticulous and efficient in his practice of the profession.

It is common ground (I think!) that the testatrix was illiterate. The onus of proving due execution of a will rests on the party propounding it: in this case the onus is on the respondents. The appellants - for whatever reasons - have delayed over 20 years before challenging the will, thus making it almost impossible for the respondents to gather sufficient evidence to support due execution. It reminds me of the situation in Holmden v Bitar (1987) 47 SASR 509, a Customs prosecution of a lady for bringing prohibited meats into Australia. Not long after the foodstuffs were seized the Customs people, for no disclosed reason, destroyed them - but the averment - that the goods were unlawfully brought in the country, reversed the onus so that it was upon the defendant to prove that the goods were not prohibited imports. How could she ever prove that? Cox J allowed the defendant's appeal against conviction. In the course of his Reasons he said (@ 520-521):-

"... the learned magistrate had evidence only of the deliberate destruction by the prosecution authorities, soon after their seizure, of the five tins that were the subject of the charge, so that the respondent had no practicable way of discharging the burden of proof that was cast on her by the averment provision. There appeared to be no justification at all for the destruction of the evidence before the case had been heard. In those circumstances, and provided that he thought the respondent's objection was sincerely made (that is, that she really wanted to have the contents examined or tested before trial), he was entitled, I think, to hold that the appellant had been denied a fair trial - that the destruction of the evidence, coupled with the effect of s 86d, made the respondent's position quite intolerable."

The same principle applies here. Evidence by which the respondents may have been able to prove due execution has been lost or destroyed: some potential witnesses have died.

Mr Morcombe's reply was that Mr Cornish died in 1978, only two years after the testatrix: even if proceedings had been taken soon after the death, Mr Cornish' evidence was still not likely to have been available. Perhaps so - but it would have been far more likely that the docket, perhaps with notes by Mr Cornish, his diary and cost entries, would have been found - material, some of at least of which may have thrown light on due execution.

As it is the first respondent denies ever having gone with his mother to have her will made. It is difficult to think that now there is any evidence available to prove due execution.

There is one other point on this. The lady was illiterate. That may be regarded as a suspicious circumstance. Whether here it would be, would depend on the view of the evidence taken by the trial Judge:-

" Where the testator is enfeebled, illiterate or blind the court may not admit the will to probate unless it is shown the testator knew and approved of the contents of the will. The court must be satisfied that the will was read to the testator, that the testator read the will or that he or she knew and understood the contents of the will at the time of execution." (24 Halsbury's Laws of Australia para 395 - 205).

Two authorities are cited, In the Matter of the Will of Clayton [1906] NZGazLawRp 33; (1906) 8 GLR 516 and Fulton v Andrew (1875) LR 7 HL 448.

In Clayton's Case Edwards J expressed his Reasons as follows:-

"The rule is that where the will shows upon its face that it is the will of an obviously ignorant or illiterate person, or where the signature of the testator is so imperfectly or badly written as to show extreme feebleness or illiteracy, on the part of the testator, it must be shown by affidavit that the will was read over to the testator before its execution, or that the testator had, at such time, knowledge of its contents. (Tristram and Coote's Probate Practice, 13th Ed. 75)."

Mr Quick reminded us of the law as Isaacs J expounded in Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 @ 528:-

" The relevant law is not doubtful. It may be thus stated: - (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 the 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 on 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."

Whenever a suspicious circumstance is shewn then the onus is on the propounder of the will to disprove it. How now, through the extreme delay in this case, could that be done?

I notice paragraph 16(c) in the Statement of Claim:-

"The Plaintiffs put the Defendants to proof that the Testatrix knew and approved of the contents of the said will."

So the appellants certainly meant to put the respondents to proof but their delay has made it impossible for the respondents to discharge the onus.

The Master had to exercise a discretion. To disturb his exercise of it, we must find either that he took into account material which he should not or he did not take into account material which he should have, or his exercise of discretion was so obviously erroneous as not to be supportable. Unfortunately the Master has given no clues in his Reasons as to why he exercised his discretion as he did so we cannot assess his use of material. Yet so far as the challenge to the validity of the will is concerned, I would, without hesitation, exercise my own discretion to the same effect. The delay is just too long and that, without deciding other points such as standing, is sufficient not to allow that part of the action to proceed.

I am, upon reflection, not so sure about proceedings under the Inheritance (Family Provision) Act. The delay is the same but the proceedings are of a different kind. It may be, that a court could be persuaded to extend the time for an application pursuant to s8(2) of the Act. I express no opinion on that beyond saying that the appellants should be given the chance to try.

Did the Master have power to make an order striking out the action?

The Master in the final paragraph of his Reasons said he was "persuaded ... that the plaintiff's claim should be dismissed." He went on:-

" Having considered all of the matters put by Ms Shaw and Mr Pickhaver, I am persuaded on the basis of the undisputed evidence to which I have referred earlier that the plaintiffs' claim should be dismissed. Insofar as it is a claim for revocation of the Probate, it should not be encumbered with other actions. Insofar as it is an action for revocation of the Probate, I consider that it should be struck out."

Mr Morcombe argued that the Master did not have power to strike out: that only documents filed as steps in an action may be struck out while an action itself should be dismissed. He relied on the decision of Mullighan J in T.R.A.M.S. Pty Ltd v The Grand Hotel Pty Ltd (Judgment No. S4296 delivered 30 November 1993). In the course of his Reasons the learned Judge said:-

"I think there is a difference between dismissing an action and striking out an action. The Rules provide for the former in limited circumstances but do not provide for the latter and there is no reason to suppose that the two expressions mean the same thing."

Mr Quick replied that T.R.A.M.S. Pty Ltd v The Grand Hotel Pty Ltd was a decision based on the Rules: apart from the Rules the Court has an inherent jurisdiction to strike out. Yet we should go by the Rules and I adopt the analysis of Mulligan J and accept that the same principles apply here. The learned Master should have given the respondents what they sought or he should have simply dismissed the action.

I canvass that point only in aid of what we should do now. That part of the action challenging probate should be dismissed. If the other part of the action relating to inheritance is to proceed, the statement of claim will have to be amended to seek an extension of time for making the applications, pursuant to s8(2) of the Act. Certainly the action thereafter should proceed on pleadings, not on affidavits, in accordance with the Rules.

I have come to the conclusion that the Court should allow the appellants the opportunity to pursue their claims under the Inheritance (Family Provision) Act.

Accordingly I suggest that the appeal be allowed for the purpose of dismissing, rather than striking out the claim for revocation of probate. As for that part of the action relating to claims under the Inheritance (Family Provision) Act, it should be allowed to proceed but on pleadings, not by way of affidavits.

PRIOR J I agree with the orders proposed by Millhouse J.

I think it is appropriate to order that the application for revocation of Probate be dismissed, not simply because of the delay but because of a continuation of the delay, acquiescence on the part of the appellants and the unfair imposition of a burden of proof with respect to proof in solemn form. To permit the application to proceed now would constitute an abuse of process.

In earlier cases, it was said that whilst delay of itself was not necessarily a bar, a long delay, which was unexplained did constitute a bar[1]

. More recently it has been held that, notwithstanding a delay of some 50 years, the power to dismiss an application to revoke a grant should not be exercised as it was not shown that the application constituted an abuse of process[2]. Mere delay is not always a sufficient ground to dismiss applications of this kind.

50 In Willis v Earl Beauchamp[3], the Court of Appeal affirmed the existence of a power to dismiss an application for revocation of letters of administration, after a lapse of more than 80 years, on the grounds that the action was frivolous and vexatious and an abuse of the process of the court. Bowen LJ[4], referred to the inherent power which every court has to prevent abuse of its processes. In his view, absent a satisfactory explanation as to why the defendants were made defendants in the suit the proceedings should be dismissed. Fry LJ spoke of the action being frivolous and vexatious on the pleadings. He saw an action begun nearly 90 years after the death of the person to whose estate it related, as "almost prima facie vexatious".

51 At about the same time as Willis was decided, the Full Court in New South Wales was of a view that lapse of time short of 30 years was not of itself a bar to the right of the next of kin to demand proof of a will in solemn form. It may be a bar if taken in conjunction with other circumstances. Plainly, the test laid down in that case is met here, whatever be the proper view about a mere passage of time. Laches, acquiescence and other circumstances particularised in the reasons given by Justice Duggan. prevent a late prosecution of this application to revoke a grant of probate[5].

52 However, the other relief sought should not be summarily dismissed. Absent the abundant unfairness associated with the application to revoke, it may be open to the court to permit an extension of time within which to pursue claims under the Inheritance (Family Provisions) Act 1972 . That opportunity should not be denied by an order of dismissal now.

DUGGAN J. The history of this matter is set out in the judgment of Millhouse J.

The learned master dismissed the plaintiffs' action, adding that in so far as it was a claim for revocation of probate, it should be struck out. There was discussion at the hearing of the appeal as to whether the master, having found against the appellants, should have dismissed the action or struck it out. I proceed on the basis that, if the respondents' argument on the merits is accepted on this issue, the appropriate order would be to dismiss the application for revocation of probate on the ground that it constitutes an abuse of the process of the court. (Neilson v The Public Trustee Powell J, Supreme Court of NSW Probate Division 8/5/1992 BC 9201888).

The nature of an application for revocation of probate is discussed by Powell J in Neilson v The Public Trustee (supra). (See also In the Estate of Edwards, Deceased (1981) 28 SASR 380). The undoubted power of the court to grant such an application is discretionary and regard must be had to all the circumstances of the case. Factors such as delay and acquiescence may be of relevance to the application (Tristram and Coote's Probate Practice (27th ed) 657) and these factors are discussed in a number of cases in which revocation of probate has been sought.

The cases provide assistance in relation to two issues which are of importance in the present case, namely, the circumstances in which delay, in conjunction with other matters, will give rise to an abuse of the court's process and the appropriateness or otherwise of making an order which would bring the action for revocation of probate to a halt at this stage of the proceedings instead of allowing the matter to go to trial.

In Willis v Earl Beauchamp (1886) 11 PD 59 an action was brought to obtain revocation of letters of administration which were granted over 80 years prior to the commencement of the action. The Court of Appeal held that the judge at first instance was justified in dismissing the actions as being frivolous and an abuse of the process of the court. The dismissal order was not made under the Rules of Court but in the exercise of the inherent jurisdiction of the court to prevent abuse of process. Cotton L.J. said (63):

"It is very true that the letters of administration on which the title would rest, would have been granted only within a short period, but in substance this plaintiff is seeking to recover from those who are personal representatives of the administrators, on the ground that he is a nearer relative than the relatives to whom they handed over this personal estate. In my opinion, having regard to that statute [13 of 23 & 24 Vict. which imposed a limitation period of 20 years on actions taken against the personal representatives of a person dying intestate], even if the letters of administration were recalled, the action against the representatives of those persons would be hopeless, and I cannot but look upon this action as one which is vexatious and unnecessary, and would produce no good result. It is calling upon the defendants here to contest the question of the relationship to the deceased after the vast number of years which have elapsed (nearly ninety years) without the probability of any good result arising there-from. On all those grounds, therefore, in my opinion, the order made was right, and this appeal fails."

Bowen L.J. expressed the view that, although the court would not lightly stay an action at its inception, the action before the court had no prospects of success. Fry L.J. was of the opinion that an action commenced so long after the death of the owner of the estate was prima facie vexatious.

In re Goode (1890) 11 NSWLR (Eq) 281 was a case in which the testator's widow commenced proceedings for the revocation of a grant of probate some ten years after the death of the testator. The plaintiff's case was set out in an affidavit before Manning J who dismissed the application. The Court of Appeal allowed an appeal against the decision of Manning J. It appeared from further affidavits put before the Appeal Court that, immediately after the death of the testator, the applicant had determined to dispute the will, but she was without the financial means to do so. She went to various financial agencies in an attempt to raise the money but was unsuccessful. It was held that, in the circumstances, the delay was accounted for and the action should be allowed to proceed. Innes J ( Stephen J) concurring, said (287):

"It there had been no affidavits on behalf of the executors, I, for one, would have been prepared to say that the lapse of time, even though unexplained, would not have been sufficient to bar the applicants' right to have the will proved in solemn form. In my opinion, the cases shew that the lapse of time, short of thirty years, is in itself no bar, but that it may be a bar, taken in conjunction with other circumstances, and that the onus lies upon the persons who oppose the application of shewing that there are such other circumstances. The applicants in this case knew that probate had been granted in common form, and have lain by for some nine years, and if these were the only facts before us, I do not think that the Court could refuse the application or even call upon the applicants to explain their delay; but in addition to this we have the facts set out in the affidavits of the executors, and these, I think, are sufficient to cast upon the applicants the onus of explaining why they did not take action before. This onus is in my opinion discharged by the applicants in the subsequent affidavits, which were not before Mr. Justice Manning, ..."

In Mohan v Broughton [1899] P211, the plaintiff took proceedings to revoke letters of administration approximately six years after they had been granted. The proceedings were dismissed on the ground of res judicata and because the action was vexatious. The order was made after it had been decided that certain issues would be determined on affidavit evidence by the trial judge, so that it was not a case in which it could be said that the proceedings were dismissed in limine. The plaintiff's claim depended upon the legitimacy or illegitimacy of the mother of the intestate. Prior to the plaintiff's action, Chancery proceedings had taken place to determine who were the next of kin. In dismissing the plaintiff's action Gorrell Barnes J said (220):

"Neither the plaintiff nor her solicitor gave evidence before me at the hearing, and the facts were all taken from the affidavits and papers which were put in. She was represented on the summons in Chancery by a London firm of solicitors acting as agents for a firm of solicitors in Belfast - she was residing in Ireland at the time - and she had the opportunity of investigating the proceedings which had taken place in the Chancery suit; and, even if she or her solicitors did not do so, as to which there is no evidence before me, in my opinion she had notice of all those proceedings. Moreover, as I have already pointed out, the plaintiff was always aware of the question of legitimacy which could be raised in connection with the relationship of those who have been found next of kin to the deceased; and, notwithstanding that knowledge, she took no steps, for three years at least after the money had been distributed amongst the next of kin, to question the Chancery proceedings and the orders made therein. In my opinion, the plaintiff has practically acquiesced in the Chancery proceedings, and has been guilty of such laches as to disentitle her, according to the authorities to which I have referred, to maintain a suit against those who have received the estate to compel them to refund. Therefore, as the only object of the present suit to revoke the letters of administration and obtain a grant in her own favour is to assist her in an attempt to recover the funds which have been distributed, it follows that this Court ought not to assist the plaintiff, who has been guilty of laches in the way I have indicated, to obtain a grant which would be useless to her. This point of laches being decided against the plaintiff, it is unnecessary that any other questions which might be raised in the case should be gone into. In my judgment the suit must be dismissed with costs."

The cases of Willis v Earl Beauchamp and Mohan v Broughton were discussed in Re Coghlan [1948] 2 All ER 68 where the majority (Tucker L.J. and Hodson J), whilst not doubting the appropriateness of the result in each case, issued a word of caution about using them as authorities for the dismissal of an action in limine. Their Honours expressed the view that mere laches such as would bar a claim to subsequent proceedings would not, of itself, justify dismissing the proceedings in limine. Such a course, it was said, should be exercised only in exceptional and clear cases. (See also Re Flynn [1982] 1 All ER 882.)

Finally, Neilson v The Public Trustee (supra) and Bramston v Morris (Powell J Supreme Court of New South Wales Probate Division 20/8/1993 BC 9303644) are two modern examples of cases in which applications for revocation of grant of probate were summarily dismissed as abuses of process in circumstances which included acquiescence and delay.

It follows from these authorities that the court has power to dismiss an action for revocation of probate if the pursuit of the application would amount to an abuse of the process of the court. The authorities suggest that mere delay is insufficient, but that a case for abuse of process may be made out if the delay exists in conjunction with other circumstances which make it unjust for the case to proceed. It must also be acknowledged that summary dismissal is exceptional and care must be taken before granting such an application.

In my view, the length of the delay in the present case is not sufficient of itself to justify summarily dismissing the matter. However the relevant circumstances extend beyond mere delay. The statement of claim seeks a revocation of probate of the 1970 will only. Mr Morcombe QC, for the appellants, explained that his clients were not aware of the other three wills until after the statement of claim had been filed. He indicated that, if the appellants were permitted to do so, they would challenge the 1960 will also. Presumably the purpose would be to enable the 1957 will to be propounded so that the appellants could obtain a share in the estate.

It appears from the affidavit of the appellant Ivy Najar that, after the death of her mother in 1976, she was advised by her brother Shahib, that her mother's estate was going to his three sons. She said she was upset at this and went to Genders, her family solicitors. She said she was told it would be difficult and expensive to take any action and that she was discouraged from doing so. In addition, she said there was strong family and Druze community pressure opposed to taking legal proceedings against family members. As a result, she decided to take no further action. She said she did not actually see a copy of her mother's will until 1997.

The appellant Allan Rasheed stated in his affidavit that, after his mother's death, he also was told by Shahib that everything had been left to Shahib's sons and that Allan and his other brother and sister had no interest in the properties. He spoke to Ivy about her visit to the solicitors and the advice which she received. He said in his affidavit:

"I also actively discouraged Ivy from taking legal action in respect of our mother's estate not because of difficulty of expense but because of my father's specific request to me to keep the family together."

The other appellant, Victor Rasheed, went to the United States to live in 1951. He said he retained a firm of solicitors to represent him in relation to his mother's will. He expressed dissatisfaction with the solicitors he contacted because of their alleged inaction. He said that later, probably in 1978, he was informed by either Allan or Ivy that Shahib's three sons were the only beneficiaries of his parents' estate. He said that in the light of the experience with his solicitors, the fact that his brother and sister seemed unwilling to take any action in respect of their inheritance and the fact that he was residing permanently in the United States, he decided to take no further action.

The significance of these matters is readily apparent. The appellants, after receiving legal advice and taking into account the other matters referred to in their affidavits, made a deliberate decision not to challenge their mother's will. They did so in the knowledge that they had not received what they claim their parents had said they would receive under the will. They were also aware at the time they decided not to take any action of the circumstances upon which they now seek to rely in challenging the 1970 will and, if they were permitted to do so, the 1960 will.

A trial of the issues raised by the appellants would require the court to investigate events which occurred at least 38 years ago when the 1960 will was executed. The events under investigation would involve assessments of judgment and opinion as to the mental capacity of the testatrix. There is no suggestion of the existence of any evidence of incapacity apart from the impressions of the parties directly involved on either side. The affidavit evidence falls far short of establishing a relevant difference between the testatrix's mental capacity in 1960 as compared with that in 1957 and yet the appellants would seek to uphold the 1957 will and dispute the 1960 will. Vague suggestions of undue influence have been made in the affidavits and these would be even more difficult to evaluate and assess after the lapse of such a long period of time.

There may be occasions when the trial of such issues in inevitable and the court must then strive to do its best to resolve any conflict. But what is inescapable in the present case is the fact that the issues could have been investigated shortly after the death of the testatrix if it had not been for the decision on the part of all the appellants to take no action.

I do not think that it is necessary to decide whether the two appellants who were executors named in their mother's will knowingly applied for probate. By their conduct in deciding not to pursue their rights, they acquiesced in the estate going to Shahib's family. They did so for their own reasons and while they were in possession of the facts upon which they would now rely to challenge the will. At least one of the respondents has altered his affairs and position to a significant extent in reliance on the 1970 will.

As I have said, I do not think that delay alone, even for the lengthy period which elapsed in this case, should prevent an application to revoke probate. However this is not a case where delay stands alone. The very significant difficulties which they delay has placed in the path of the respondents in presenting their case on issues such as incapacity and duress have resulted from the conduct of the appellants in deciding not to pursue their claim at the time of their mother's death. Although it cannot be said that the appellants' case is unarguable, it would nevertheless be unfair to allow the appellants to present it at this time. Freedom of access to the courts is a principle of fundamental importance and it should not be denied unless the interests of justice demand it. (Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 519.) However, it is my view that laches and acquiescence on the part of the appellants has resulted in a situation whereby the revocation proceedings constitute an abuse of the process of the court. The factual basis for this conclusion is to be found in uncontested evidence derived principally from the appellants' affidavits. For these reasons I would dismiss the appeal against the dismissal of the application for revocation for probate.

I agree that the court should allow the appellants an opportunity to pursue their claims under the Inheritance and Family Provision Act. I agree with the orders proposed by Millhouse J.

Hoffmann v Norris [1805] 2 Phill Ecc 230n; 161 ER 1129n; Merryweather v Turner [1844] 3 Curt 802; 163 ER 907

2 re Coughlin [1948] All ER 68; re Flynn [1982] 1 All ER 882

3 [1886] 11 PD 59

5 Cp Mohan v Broughton [1899] P 211 at 220

Hoffmann v Norris [1805] 2 Phill Ecc 230n; 161 ER 1129n; Merryweather v Turner [1844] 3 Curt 802; 163 ER 907

[2] Re Coghlan [1948] 2 All ER 68; Re Flynn [1982] 1 All ER 882

[3] [1886] 11 PD 59

[5] Cp Mohan v Broughton [1899] P 211 at 220