Re Estate Barzacca

Hearing dates: 29 August 2025

Decision date: 27 October 2025

Jurisdiction: Equity - Probate List

Before: Lindsay J

Decision: An application (for an order that a probate caveat cease to be in force) dismissed with case management orders in aid of disclosure of wills and the circumstances in which wills were prepared and executed.

Catchwords: SUCCESSION – Contested Probate – Practice and Procedure – Caveats – Caveat against grant – Application for order that caveat cease to be in force – Doubt as to whether grant of probate or administration should be made – Circumstances that warrant investigation before pleadings – Nature of “evidence” to be considered by Court - Case management – Orders for disclosure of information about a deceased estate, testamentary instruments and personal circumstances of a deceased person – Orders for discovery affidavits deposing to circumstances in which a will was prepared and executed – Supreme Court Rules 1970 (NSW), rule 71.4

Legislation Cited: Australian Courts Act 1828 (Imp)
Civil Procedure Act 2005 NSW
Evidence Act 1995 NSW
Health Records and Information Privacy Act 2002 NSW
Interpretation Act 1987 NSW
Judicature Acts of 1873 and 1875 (UK)
New South Wales Act 1823 (Imp)
Statute of Frauds 1677
Succession Act 2006 NSW
Wills Act 1837
Supreme Court Rules 1970 NSW
Uniform Civil Procedure Rules 2005 NSW

Cases Cited: Allen v M’Pherson (1847) 1 HLC 191; 9 ER 727
Azzopardi v Smart (Estate of Smart) (1992) 27 NSWLR 232
Banks v Goodfellow (1870) LR 5 QB 549
Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089
Blomley v Ryan (1956) 99 CLR 362
Boyce v Bunce [2015] NSWSC 1924
Boyce v Rossborough (1857) 6 HLC 1; 10 ER 1192
Boyd Thorn (2017) 96 NSWLR 390
Bridgewater v Leahy (1998) 194 CLR 457
Camilleri v Alexakis [2024] HCASL 274
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Estate of Katalinic [2020] NSWSC 805
Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786
Estate of Linworth [2021] NSWSC 334
Estate Rofe [2021] NSWSC 257
Health Care Complaints Commission v Alexakis [2023] NSWCATOD 99
Health Care Complaints Commission v Alexakis (No 2) [2024] NSWCATOD 82
Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41
In the Estate of Fuld, Deceased; Hartley v Fuld (Attorney-General Intervening) [1965] P 405
Johnson v Buttress (1936) 56 CLR 113
Lewis v Lewis (2021) 105 NSWLR 487
Parfitt v Lawless (1872) LR 2 P&D 462
Quek v Beggs (1990) 5 BPR 11,761
Re Estate Capelin (Deceased) [2022] NSWSC 236; 107 NSWLR 461
Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033
Re Estate Pierobon, deceased [2014] NSWSC 387
Re Estates Brooker-Pain and Soulos [2019] NSWSC 671
Schwanke v Alexakis [2024] HCASL 246
Tobin v Ezekiel (2012) 83 NSWLR 757
Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136
Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102
Van Alst v Hunter 5 Johnson N.Y. Ch. Rep.
Wingrove v Wingrove (1885) LR 11, PD 81
Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116

Texts Cited: AWB Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature” (1981) 48 University of Chicago Law Review 632, reprinted as Chapter 12 in Simpson Legal Theory and Legal History (Hambledon Press)
English Council of Legal Education, A Century of Law Reform: Twelve Lectures on the Changes in the Law of England during the 19th Century, pages 320-322
Law Commission of England and Wales, Modernising Wills Law Report
NSW Law Reform Commission’s Report 47 (1986) - Community Law Reform Programme: Wills -The Execution and Revocation
Probate List Guidelines (published as “Version 2” on 28 January 2020
WS Holdsworth and CW Vickers, The Law of Succession: Testamentary and Intestate (Oxford, 1899)
Williams, Treatise on the Law of Executors and Administrators (Philadelphia, 1833), Volume 1, Chapter 1, Section 2, pages 33-38
Yazdani, “Testamentary Undue Influence - A Historical Overview” (2023) 53 Australian Bar Review 182

Category: Procedural rulings

Parties: Plaintiff (Executor): Vittorio Barzacca
Defendant (Caveator): Jamie Fiorino Saliba

Representation: Counsel:
Plaintiff (Executor): T Catanzariti
Defendant (Caveator): R Rasmussen
Solicitors:
Plaintiff (Executor): Marando Solicitors
Defendant (Caveator): Andriano & Associates

File Number(s): 2025/00084977

JUDGMENT

INTRODUCTION

1. These proceedings call for a consideration of case management principles applicable, upon an exercise of the Court’s probate jurisdiction, when an applicant for a grant of probate of a will (the plaintiff) is confronted by a probate caveat and applies for an order that the caveat cease to be in force, activating rule 71(4) of Part 78 of the Supreme Court Rules 1970 NSW (commonly called “the Probate Rules).

2. Rule 71(4) is in the following terms :

“71 ORDER that caveat cease to be in force

…

(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) there is a doubt as to whether the grant of probate or administration should be made … ,

the Court may order that the caveat cease to be in force in respect of the application.”

3. The focus for attention in these proceedings is on rule 71(4)(b). There is no dispute that the caveator in these proceedings (the defendant) has a relevant “interest” within the meaning of rule 71(4)(a).

4. The core points to be determined in these proceedings are:

(a) what is meant by the word “evidence” in the expression “if the Court considers that the evidence fails to show”; and (b) whether the defendant needs, or should be permitted, to avail himself of the Court’s now standard case management orders (for the filing of a verified “disclosure statement” relating to information concerning an estate, testamentary instruments and personal circumstances of a deceased person or a “discovery affidavit” concerning the circumstances in which a will was prepared and executed) in aid of consideration by the Court whether there are circumstances that warrant investigation bearing upon whether “there is a doubt as to whether [a] grant of probate or administration should be made”.

5. The second of these core points focuses attention on the nature of the case which the defendant seeks to advance regarding the validity and operation of known wills of the deceased. He contends that the wills propounded by the plaintiff are inconsistent with statements made to him by the deceased during her lifetime (a fact not of itself unusual in a succession case) and he apprehends that the plaintiff isolated her from him and poisoned her mind against him in a manner calculated to secure the deceased’s estate for himself, to the exclusion of the defendant.

6. The defendant has endeavoured, without access to information which is peculiarly within the knowledge of the plaintiff and the solicitors for the plaintiff, to identify a case against the validity of the wills of the deceased disclosed by the plaintiff and to do so within the logical legal framework (detailed at length in Estate Rofe [2021] NSWSC 257 at [104]-[166]) generally adopted upon a consideration of whether a will was the last will of a free and capable testator.

7. That framework incorporates questions about whether a deceased person had “testamentary capacity” at the time a will was executed (or, in some cases, when instructions were given for the drafting of a will); whether the deceased “knew and approved” the contents of the will; whether the deceased’s execution of the will was procured by “undue influence” (coercion) of another party; and whether execution of the will was procured by the “fraud” (misleading and deceptive conduct) of another party. A party who propounds a will bears the ultimate onus of persuading the Court that it was the last will of a free and capable testator. In the conduct of proceedings about the validity of a will a party who propounds a will bears an evidentiary onus to establish “testamentary capacity” and “knowledge and approval”. A person alleging invalidity of a will bears an evidentiary onus to establish “undue influence” or “fraud”. The ultimate onus (of proving that a will was the last will of a free and capable testator) remains on the party propounding the will.

8. In the present proceedings the defendant contends that he should be allowed access to the Court’s case management regime to investigate: (a) whether the deceased made a will or wills other than those disclosed by the plaintiff; (b) the circumstances in which each will of the deceased was prepared and executed; and (c) the health of the deceased at the time any will made, or purportedly made, by her was executed.

9. In case management of probate proceedings, the Court endeavours, in the service of due administration of a deceased estate and the public interest in the due administration of estates, to strike a balance between competing interests (public and private) in each particular case.

10. Experience teaches that the due administration of an estate may be frustrated or delayed either by a reluctance on the part of a person propounding a will to make disclosures about other wills or the circumstances in which a will was prepared and executed or, on the other hand, by an opponent of a will insisting upon an exhaustive investigation of remote possibilities bearing upon the validity of the will or complaining about collateral issues such as those involving (in the absence of anybody authorised to act on behalf of the deceased’s estate) an accounting for estate assets.

CASE LAW RELATING TO A PROBATE CAVEAT

11. In R**e E**state Capelin (Deceased) [2022] NSWSC 236; 107 NSWLR 461 I held that a caveator seeking to resist an order that a caveat cease to be in force is not required to establish a prim**a facie case. In determining whether to make such an order, rule 71(4) of the Probate Rules is to be read and applied in accordance with its terms.

12. The significance of that determination is that it departed from contrary reasoning of Powell J in Azzopardi v Smart (Estate of Smart) (1992) 27 NSWLR 232.

13. The ghost of Azzopardi v Smart lingers in the air as an applicant for probate in these proceedings (the plaintiff), in substance, contends that a caveator (the defendant) should have no access to the Court’s processes for the compulsory provision of information (in particular, subpoenas for the production of documents) when called upon, by reference to rule 71(4), “to show” the existence of “a doubt as to whether [a] grant of probate or administration should be made” before an order for pleadings in aid of a contested probate suit is made.

14. In Re Estate Capelin I drew, particularly, upon the learning and experience of Hallen J in E**state of Katalinic [2020] NSWSC 805 and E**state of L**inworth [2021] NSWSC 334, and of Windeyer J in Estate of W**einstock [2007] NSWSC 193; (2007) 1 ASTLR 156.

15. In that connection I here extract (with emphasis added) several paragraphs of my judgment, to which I adhere:

“[37] It is commonly accepted that a caveator bears an onus of establishing each of the elements of SCR Pt 78 rule 71(4), but why that is so, and the precise nature of any such onus, are rarely examined as stand alone issues. Most debate focuses upon the words “interest” and “a reasonable prospect of establishing such an interest” in SCR Pt 78 rule 71(4)(a) and the words “doubt” and (to a lesser extent) “should” in SCR Pt 78 rule 71(4)(b). If there is such an onus, I would characterise it as a forensic onus to persuade the Court, by reference to the criteria in subparagraphs (a) and (b), to exercise the discretion implicit in the word “may” to decline to order that a caveat cease to be in force.

[38] I hesitate to characterise such an onus as “legal” or “evidentiary” because, in case management of a motion for an order that a caveat cease to be in force, or on the hearing of such a motion, a caveator may apply for an order (or the Court may on its own motion order) that documentation be produced or information be disclosed by a person involved in the preparation or execution of a will, or any person with information material to administration of the deceased’s estate. Subpoenas and other discovery procedures are routinely available, within the control of the Court, in management of a probate case: Re Estates Brooker-Pain and Soulos [2019] NSWSC 671.

[39] This is consistent with pursuit of the purpose of an exercise of probate jurisdiction. Probate proceedings may from time to time appear to be adversarial (when all interested parties are before the Court), but they are essentially inquisitorial in character because of the public interest inherent in ascertaining, and giving effect to, the testamentary intentions of a deceased person, the central personality in probate proceedings.

[40] The object of an exercise of probate jurisdiction is to carry out a deceased person’s duly expressed testamentary intentions, and to see that beneficiaries entitled to a deceased estate get what is due to them, without undue delay: In the Goods of William Loveday [1900] P 154 at 157; Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192. Probate disputes generally require disciplined case management, a requirement of long standing reinforced by the “guiding principles” enacted as Part 6 Division 1 (sections 56-60) of the CPA. Those guiding principles, and the powers conferred on the Court by the CPA, by the UCPR and by SCR Pt 78 rule 71(6)-(9), stand against the rigid application of rules of procedure in preference to ensuring that the real issues in dispute are determined: Gardiner v Hughes (2017) 54 VR 394 at [93]-[95]. SCR Pt 78 rule 71(6) and CPA section 56(1) both direct attention to a need to consider what procedural steps may be required for a “just, quick and cheap” disposition of proceedings.

[41] Probate litigation is generally characterised as “interest litigation” because, to have the standing requisite to participation in probate proceedings (or, as SCR Pt 78 rule 71(4)(a) illustrates, to sustain a caveat), a party must have an interest in the outcome of the proceedings in the sense that the party’s rights will, or might, be affected by the outcome: Nobarani v Mariconte (2018) 265 CLR 236 at [49]; Gardiner v Hughes (2017) 54 VR 394; Gertsch v Roberts (1993) 35 NSWLR 631.

[42] The terms of SCR Pt 78 rule 71(4)(a) are reflective of a degree of procedural flexibility in the rule in so far as the rule refers, not simply to demonstration in the evidence of “an interest”, but also to “a reasonable prospect of establishing such an interest”. The rule speaks at the time a decision is made by the Court, but it contemplates an assessment of the future course of proceedings.

[43] The plaintiff (correctly) accepts that, by virtue of his interest as a beneficiary under the 2018 will, the Caveator has an “interest” in the estate of the deceased within the meaning of SCR Pt 78 rule 71(4)(a). Accordingly, the focus for attention is on SCR Pt 78 rule 71(4)(b).

[44] On the hearing of the plaintiff’s motion, the Caveator asserted that he had “a right”, to cross examine the solicitor who prepared and attested the deceased’s execution of the will, before any determination of the plaintiff’s motion. In the alternative, he contended that he should be granted leave to cross-examine the solicitor before any determination of the motion. He applied for an order (under section 36 of the Evidence Act 1995 NSW), in the nature of a subpoena to compel the solicitor to produce his file and, thereafter, to submit to cross-examination.

[45] In the course of the hearing of the motion, I held that the Caveator had no “right”****, at this stage of the litigation (essentially, in the nature of an interlocutory proceeding), to insist upon production of the solicitor’s file or an opportunity to cross-examine the solicitor. In the circumstances of the particular case, I declined to grant him an order in the nature of a subpoena or leave to cross-examine the solicitor. In my opinion, it was not necessary for disposition of the motion to prolong proceedings on it by an adjournment to facilitate production of the solicitor’s file and cross examination. As will emerge, a more orderly procedure is available in case management of these particular proceedings. An exercise of judgement of this type is typically required in case management of probate proceedings in a manner calculated to advance administration of an estate without being distracted by unnecessary interlocutory applications or stumbling into satellite litigation.

…

Recent Case Law

[61] In Estate of Theresa Katalinic [2020] NSWSC 805 and in subsequent cases, including the Estate of Robyn Alice May Linworth [2021] NSWSC 334, Hallen J has recently drawn attention to the importance of framing the determination of a motion for an order that a caveat cease to be in force by reference to the text of SCR Pt 78 rule 71(4), informed by probate law and practice and case management principles, without unnecessary gloss in construction of the rule. The word “doubt”, a pivotal word, must ultimately be construed according to its ordinary meaning unqualified by words of description or limitation - although, in its application to the facts of a particular case, its exposition might be assisted by elaboration. Different judges may prefer different ways of saying much the same thing, expressed as a working assumption in application of the rule, but the rule itself is the touchstone of decision-making.

[62] In Estate of Katalinic [2020] NSWSC 805 at [70], Hallen J held (with emphasis added) that “the appropriate test” for determining whether a caveat should cease to be in force is “whether, on the material before the Court, there is evidence that the caveator has an interest in the estate concerned, or a reasonable prospect of establishing such an interest, and 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 should be made)”.

[63] In Estate of Linworth [2021] NSWSC 334 at [53]-[57], his Honour offered, in the following terms, additional insights into the operation of SCR Pt 78 rule 71(4):

“[53] 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”.

[54] 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.

[55] 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.

[56] 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.”

[57] 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.”

[64] His Honour’s observations in Katalinic and Linworth were made, as appears from his judgments, with an appreciation of the necessity for the Court, in making decisions about caveats, to consult what might appear to be best adapted for the just, quick and cheap accommodation of proceedings.

[65] To my mind, the evaluative character of the decision-making process under SCR Pt 78 rule 71(4), and a common sense assessment of “doubt”****, derive, not so much from the word “doubt” alone, but from the words “doubt”****, “should” and “may”****, in combination, in the context of the purpose served by an exercise of probate jurisdiction - essentially, the due administration of a deceased estate without unnecessary delay. This is not, however, a substantial point of difference with the approach adopted by Hallen J.

[66] His Honour’s observations more faithfully reflect SCR Pt 78 than does the classic statement of Powell J in Azzopardi v Smart. I prefer his reasoning to that of Powell J which, in my opinion, represents a departure from the terms of SCR Pt 78 rule 71(4), and its predecessor, an impermissible gloss on the statute.

[67] I also endorse the following observations of Windeyer J in Weinstock v Beck; In the Estate of Weinstock [2007] NSWSC 193; (2007) 1 ASTLR 156 at [13]:

“… 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.”

[68] Robb J acted upon a similar view of the law in Wilson v Wilson [2017] NSWSC 1669 at [11]. He proceeded on the basis that SCR Pt 78 rule 71(4)(b) should be applied in accordance with its terms, insofar as the issue before the Court is whether, on the evidence, there is a doubt as to whether a grant of probate should be made.

[69] I add only that, although an order for pleadings will routinely follow a decision to dismiss a motion for an order that a caveat cease to be in force, the making of such a decision provides a convenient occasion for case management of a contested suit, and it may be advantageous for the preparation of pleadings to be deferred pending the filing by one or more of the parties to the suit of a discovery affidavit, or affidavits, of the type discussed in Re Estates Brooker-Pain and Soulos [2019] NSWSC 871, directed to disclosure of facts bearing upon real issues in dispute.

Legislative History And Case Law

[70] Hallen J’s approach draws support from a study of the legislative history of SCR Pt 78 rule 71(4) and, in particular, the judgment of the Court of Appeal in In the Will of Young (1968) 70 SR (NSW) 386, together with antecedent case law.

[71] The significance of the older case law is recognised in Mason and Handler, Succession Law and Practice NSW (LexisNexis, Australia, a Loose Leaf Service) at [1681.1] where it is said that the “test” under SCR Pt 78 rule 71(4)(b) “is different in form, although probably not in substance, from that under the old procedure which required the Court to consider whether the lodging of the caveat was not bona fide but vexatious: In the Will of Dixon (1909) 9 SR (NSW) 674; 26 WN (NSW) 130a; In the Will of Young [1968] 3 NSWLR 221; (1968) 70 SR (NSW) 386; 89 (Pt 2) (NSW) 1.”

[72] With that observation, I concur. The problem with the learned authors’ commentary, as with much commentary in this area of the law, is that it is accompanied by an express reference to Azzopardi v Smart for the proposition that “[the] onus of establishing the grounds for an order that a caveat cease to be in force has been described as establishing a prima facie case.”

[73] The spectre of Powell J’s requirement for proof of a prima facie case has yet to be exorcised despite the clear terms of SCR Pt 78 rule 71(4) and the judgment of the Court of Appeal in In the Will of Young.

[74] SCR Pt 78 rule 71(4) in its current form has been in force since 21 January 2013.

…

[106] SCR Pt 78 rule 71(4)(b) offers no exposition of factors that might be taken into account by reference to it. Nor is it necessary or desirable that anything like an exhaustive list of factors be engrafted onto SCR Pt 78 rule 71(4)(b) as judicial gloss. The Court needs to retain the flexibility necessary to deal with a wide range of diverse cases.

[107] Nevertheless, the following questions might aid an interrogation of the facts and circumstances of a case in the application of SCR Pt 78 rule 71(4):

(1) Whether there are facts that reasonably require investigation, or documents that reasonably require inspection, before a determination can reasonably be made as to whether a propounded testamentary instrument was the last will of a free and capable testator.

(2) Whether the propounded instrument appears to comply with the statutory requirements for the making of a “formal” will under the Succession Act 2006 NSW (principality, section 6) and, if not, whether there is evidence bearing upon characterisation of the instrument (under section 8 of the Act) as an “informal will”.

(3) Whether there is evidence that bears upon any or all of the following questions:

(a) whether, at the time the testamentary instrument was made (or at the time instructions were given for an instrument prepared by a solicitor), the testator had “testamentary capacity”: Banks v Goodfellow (1870) LR 5 QB 549 at 564-566; Bailey v Bailey (1924) 34 CLR 558; Timbury v Coffee (1941) 66 CLR 277; Worth v Clasohm (1952) 86 CLR 439; Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284.

(b) whether the testamentary instrument was made with the testator’s “knowledge and approval” of its contents: Nock v Austin (1918) 25 CLR 519 at 528; Tobin v Ezekiel (2012) 83 NSWLR 757; Lewis v Lewis [2021] NSWCA 168.

(c) whether the testator’s execution of the testamentary instrument was obtained by an exercise of “undue influence” on the part of an identified individual or individuals: Winter v Crichton (1991) 23 NSWLR 116; Hall v Hall (1868) LR 1 P&D 481; Wingrove v Wingrove (1885) 11 PD 81; Petrovski v Nasev [2011] NSWSC 1275 at [269]; Dickman v Holly [2013] NSWSC 18; Estate Rofe [2021] NSWSC 257.

(d) whether the testator’s execution of the testamentary instrument was obtained by the “fraud” of an identified individual or individuals: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136.

(4) Whether (and, if so, how) evidence on those questions should be assessed, in the absence of further evidence, by reference to the probate presumptions (arising from due execution of a testamentary instrument) as discussed in Tobin v Ezekiel (2012) 83 NSWLR 757.

(5) Whether, before any decision is made about how to proceed further, directions should be given for the service of notice of the proceedings on any person or for the filing and service of an affidavit disclosing the circumstances in which a testamentary instrument was prepared and executed.

(6) Whether any party before the Court appears unreasonably to have withheld information reasonably available to it.

[108] The Court needs to be mindful not to allow the caveat procedure to be abused by parties who seek to deploy it, not to canvass the necessity for a contested suit for a grant of probate or administration, but in an endeavour to force an opponent to show its hand before the anticipated commencement of a contested suit.

…

[112] The plaintiff’s forensic decision to “put the Caveator to proof” of a ground of challenge to the validity of the will (to the level of a prima facie case) without providing more than formal information about the circumstances in which the will was executed lends itself to a finding that the Caveator should be allowed an opportunity to investigate the circumstances in which the will was prepared and executed in the conduct of a contested probate suit. He will do so at his own risk as to costs, without any assurance that costs will be paid out of the deceased’s estate, but he has identified grounds for the conduct of an investigation.

[113] These caveat proceedings are not, as counsel for the plaintiff submits, a de facto application by the Caveator for “preliminary discovery” (akin to that for which UCPR Part 5 provides) “to obtain sufficient information to decide whether or not” to challenge the validity of the will. The evidence of the deceased’s vulnerability, and unusual circumstances surrounding preparation, execution and retention of the will in handwritten form, provide an objective foundation for a finding that further investigation of the validity of the will is warranted before a decision can reasonably be made that the will be admitted to probate.

…

[116] The plaintiff’s refusal to respond constructively to the Caveator’s request for information; his insistence that the Caveator had first to establish a prima facie case of invalidity of the deceased’s last, putative will; and his provision of evidence that deliberately stopped short of a full explanation of the circumstances in which the will was prepared and executed, were counter-productive. By his own conduct, the plaintiff created fields of inquiry (informed by unresolved, reasonable concerns) that warrant investigation.”

CASE MANAGEMENT DISCLOSURE ORDERS IN PROBATE PROCEEDINGS

16. In Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 I canvassed in detail case management principles informing practice of the Court in contested probate proceedings relating to the compulsory production of documents before pleading and service of evidence.

17. Under the heading “Commonly Encountered Needs for Information in a Probate Suit” I made the following observations in paragraphs [72]-[76] of Re Estates Brooker-Pain and Soulos (to which I adhere):

“[72] In probate proceedings, problems commonly encountered by a person who has an expectation of inheritance by will or who seeks to challenge the validity of a will include the following:

(a) identification of all testamentary instruments of the deceased, including arguably “informal wills”.

(b) investigation of the circumstances in which one or more particular testamentary instruments were prepared and executed.

(c) investigation of a deceased person’s medical condition at the time he or she executed, or otherwise adopted, one or more testamentary instruments.

[73] Where there have been a succession of testamentary instruments, their terms and validity may determine whether a person who seeks to participate in an estate has a sufficient “interest” to do so.

[74] Although a determination of testamentary capacity must be made as at a particular time (usually, the time of execution of a will but, exceptionally, as recognized in Bailey v Bailey (1924) 34 CLR 558 at 567 and 572, at the time when instructions were given for preparation of the will), the evidence bearing upon an assessment of capacity usually traverses a period of declining health on the part of the will-maker.

[75] An inability to access medical, or other, records (by subpoena or otherwise) might be a factor in explanation of delay attending a challenge to a will or the pleading of a case in probate proceedings: Photios v Photios [2019] NSWCA 158 at [63] and [65].

[76] It is generally in the interests of all persons with a bona fide interest in administration of a deceased estate that potentially competing wills, and information bearing upon their validity, be made available to all interested parties sooner rather than later. A countervailing consideration is a need to limit the extent to which “discovery processes” are used, unreasonably, to construct a speculative case. Hence, a need for case management of particular proceedings.”

18. In both theory and practice problems about the availability of basic information can be encountered at the preliminary stages, as well as at later stages, of an application for a grant of probate or administration, accepting that a “probate caveat” is not itself an originating process but rather (as recognised in Re Estate Capelin at [11] and [16]-[18]) a warning of a requirement for notice to a interested party before a grant of probate or administration is made.

19. Problems associated with a lack of basic information concerning the administration of a deceased estate are now routinely addressed by an order for the filing and service of a verified “disclosure statement” by all parties to a probate suit and an order for a person identified as having been involved in the preparation or execution of a will to file a “discovery affidavit” to disclose the circumstances in which the will was prepared and executed.

20. A **“**Disclosure Statement”. Under the current Practice Note applicable to proceedings in the Court’s Probate List (Supreme Court Practice Note SC Eq 7, issued on 13 June 2024) paragraph 19 describes what is commonly described as a “disclosure statement”.

21. Leaving aside that an order for a disclosure statement may be made by a judge no less than the Registrar in Probate, paragraph 19 is in the following terms:

“Probate Proceedings

[19] At the first directions hearing, parties should expect that the Registrar in Probate will give directions for the filing and service by the parties of a disclosure statement (which the Registrar in Probate may order must be verified), disclosing (so far as has not previously been disclosed and so far as is known) all or some of the following:

19.1 the full name, date of birth and date of death of the deceased;

19.2 whether any family provision application has been made in respect of the estate and if so, by whom;

19.3 whether it is alleged that the deceased died intestate;

19.4 each testamentary instrument of the deceased (including any informal will or statutory will) and the whereabouts of the original of each such instrument and the name and address of the solicitor, if any, who prepared it;

19.5 each testamentary instrument of the deceased being propounded in the proceedings, and the party propounding it;

19.6 whether there is a dispute as to the validity of any testamentary instrument, and if so, the grounds of challenge;

19.7 the identity of anyone who may have an interest in the outcome of any application for a grant of probate or administration;

19.8 a description of the nature and value of the assets and liabilities of the deceased at the date of death (a copy of the inventory of property attached to the probate or letters of administration will suffice for the property of the deceased at the date of death, unless other assets have been discovered);

19.9 what is, or is likely to be, the nature, and an estimate of the value, of:

(a) the assets and liabilities of the deceased;

(b) any property of the deceased that has been distributed at any time after the death of the deceased and the date of the distribution of that property; and

(c) the gross distributable estate;

19.10 any caveat lodged in respect of the estate;

19.11 a description, and an estimate of the value of, all property in the estate;

19.12 whether there has been publication of a notice of intention to apply for a grant of probate or administration and if so, by whom, and when;

19.13 whether there has previously been a grant of probate or administration in respect of the estate and if so, identifying each such grant and any application that has been made for its revocation;

19.14 whether a special administrator of the estate of the deceased has been appointed and, if so, providing the name of the administrator, the date of appointment and the proceedings in which the appointment was made;

19.15 whether the deceased was, at the time of death, a “protected person” or a “person under guardianship” within the meaning of s 38 of the NSW Trustee and Guardian Act 2009 (NSW), at any time within the last 5 years of their life, or at any time any identified testamentary instrument was executed;

19.16 details of any proceedings in which a financial management order or guardianship order affecting the deceased was made;

19.17 whether the deceased executed an enduring power of attorney or guardianship appointment and, if so, details of any such instrument; and

19.18 the identity of any hospital at which the deceased was a patient during the last year of their life or within 12 months of execution of a testamentary instrument.

22. Paragraph [20] of the Practice Note also warrants notice as a provision consistent with Re Estates Brooker-Pain and Soulos:

[20] The Registrar in Probate may give directions for the return of subpoenas for the production of documents, notices for the production of documents to the Court, or applications [for production of documents by another court on a “letter of request”] under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 33.13, directed to bringing within the control of the Court (with or without liberty to apply for access to any documents produced to the Court):

20.1 known testamentary instruments of the deceased;

20.2 the file of any solicitor or other person known to have prepared, or supervised the execution of, a testamentary instrument of the deceased;

20.3 clinical records of a treating doctor of the deceased (not medical, hospital or nursing home records generally); and

20.4 any orders, and supporting reasons for decision, of the New South Wales Civil and Administrative Tribunal (NCAT) relating to the welfare of the deceased (not the whole NCAT file).”

23. A Discovery Affidavit. The concept of a “Discovery Affidavit” reflects paragraphs [6]-[7] of Probate List Guidelines (published as “Version 2” on 28 January 2020), reproduced in Annexure “B” to a paper of mine entitled “Probate Law and Practice: An Introduction” and dated 3 March 2022 (published as a “speech” on the NSW Supreme Court website), recording standard draft orders of the Court:

“[6] ORDER that (a named party, solicitor or other person), no later than ________, file (or file and serve) an affidavit, or affidavits, deposing (to the best of his or her knowledge, information and belief) to the circumstances in which (an identified will or other testamentary instrument) was prepared and executed.

[7] Where the person named in Order 6 is not a party to the proceedings:

a) in the absence of an undertaking to the Court to the same effect, ORDER, subject to further order, that the reasonable costs of compliance with Order 6 (in a sum to be assessed by the Court, if not agreed with the person named in Order 6) be paid in the first instance by ________,

b) In the absence of agreement with the person named in Order 6 otherwise, ORDER that (a named party) pay into court, no later than ________, the sum of $________, as security for the costs of compliance with Order 6.

c) RESERVE to (the person named in Order 6) liberty to apply for Order 6 to be discharged or varied or for an order that money paid into court pursuant to Order 7(b) be paid out of court.”

FACTUAL MATRIX OF THESE PROCEEDINGS

The Course of Proceedings

24. On 20 May 2025 the defendant filed a general caveat against the grant of probate of the will dated 10 July 2014. Nothing turns on a formal defect in that caveat. It has served its purpose in engaging the parties’ competing claims.

25. On 16 July 2025 the plaintiff filed a notice of motion seeking an order that the defendant’s caveat cease to be in force. It is that motion which is presently before the Court and which provides an occasion for case management.

The Deceased, Her Estate, Her Family and Two Wills

26. These proceedings concern the estate of Vera Barzacca (“the deceased”) who was born on 21 July 1936 and died on 5 January 2025, aged 88 years, leaving wills dated 10 July 2014 (propounded by the plaintiff, the executor named in the will) and 3 February 2012 (possibly to be propounded by the defendant), if not also other undisclosed wills.

27. The deceased was aged 76 years when she executed the will dated 3 February 2012 and 78 years when she executed the will dated 10 July 2014. She was aged 80 years when, on 3 November 2016, she became a full time resident at an aged care facility at Georges Hall, where she remained until her death eight years or so later.

28. The deceased was predeceased by her husband (Fiorino Barzacca), who died on 24 May 1992.

29. There were two children of the marriage between the deceased and her husband; namely:

(a) a daughter, Giuliana Saliba, who died on 11 June 2011 after a long and debilitating illness leaving a son Jamie Saliba (the defendant); (b) a son, Vittorio Barzacca (the plaintiff).

30. The deceased was survived by two grandchildren. One of those is the defendant, the child of the deceased’s daughter Giuliana. The other is the plaintiff’s daughter, Alessandro.

31. As disclosed in an “Inventory of Property” annexed to an “Affidavit of Executor” sworn by the plaintiff on 27 February 2025 the estate of the deceased at the time of her death had an estimated gross value of $1,411,973 comprising:

(a) a residential property at Condell Park: $1,375,000; (b) a bank account credit balance: $11,274; and (c) a nursing home bond: $25,699.

32. The residential property of the deceased was her home until such time (in 2016) she took up residence in the nursing home where she remained until her death.

PARAMETERS OF THIS CASE

Overview

33. An inference is available on the evidence presently before the Court that, from a date preceding her admission to the nursing home, her affairs were managed by the plaintiff as her (enduring) attorney.

34. Her Condell Park property is located next door to the plaintiff’s residence. The two properties comprised a single lot until that lot was subdivided in or about 2003 or 2004 so that the plaintiff and his family could own one subdivided Lot and live there.

35. The defendant contends that significance attaches to the fact that the plaintiff lived next door to the deceased (and managed her affairs) because, he says, the plaintiff used his proximity to the deceased to encourage her to be dependent upon him and to turn her against the defendant, isolating her from the defendant to the extent of not keeping him informed of her personal circumstances or her death and burial.

36. On the evidence presently available to the Court, there is a pattern of complaint on the part of the defendant to the effect that, as she became increasingly dependant upon him, the plaintiff poisoned the mind of the deceased against him (the defendant) and influenced her, by stages, to depart from her earlier expressed intentions to treat her two children equally and, after the death of her daughter, to leave her estate to her two grandchildren, each representing one of the two branches of her family.

37. It is not necessary for present purposes to form a view about the ultimate merits of the defendant’s complaints but, in my assessment, they are not frivolous or lacking in bona fides.

Other Wills?: Not Known

38. There is presently no evidence before the Court as to whether the deceased made a (new) will in the wake of her husband’s death. There is no evidence presently before the Court as to whether the deceased made a (new) will in the wake of the death of her daughter, the mother of the defendant.

39. Both deaths provided an occasion upon which the deceased might reasonably have been expected to make a will.

40. The defendant suspects that the deceased may have made one or more wills not presently disclosed by the plaintiff because she told him, after the death of his mother, that she proposed to divide her estate between her two grandchildren.

41. For what it is worth, each of the wills dated 3 February 2012 and 10 July 2014 contains a standard revocation clause, revoking all former wills. That, in itself, cannot be taken as evidence that the deceased in fact had executed a will earlier than the 2012 will but it is consistent with that possibility.

Provenance of Wills Within Exclusive Knowledge of the Plaintiff’s Side of the Record

42. There is presently no evidence before the Court as to the circumstances in which the deceased’s 2012 and 2014 wills were respectively prepared and executed. Knowledge of those circumstances is uniquely within the camp of the plaintiff and his solicitors, as emerges from an examination of the form of the wills, bearing, as they do, marks of having been prepared and witnessed by the plaintiff’s solicitor.

43. In terms, the 2012 will (executed just over seven months after the death of Giuliana) appointed the plaintiff as the deceased’s executor and divided her estate between him (as to a 3/4 share) and the defendant (as to a 1/4 share) “as tenants-in-common equally” [sic] “PROVIDED ALWAYS that if any child of mine shall die in my lifetime leaving a child or children living at my death then such child or children attaining the age of eighteen (18) years shall take by substitution and if more than one as tenants-in-common equally the share in my residuary estate which his, her or their parent would otherwise have taken”.

44. The will carries a cover sheet naming “Marando Solicitors” (the solicitors on the record for the plaintiff in the current proceedings) and the signature of the deceased on the will appears to have been witnessed by Mario Marando (the solicitor on the record for the plaintiff) and a legal secretary from his office (Carmel Iaconis).

45. In terms, the 2014 will appointed the plaintiff as the deceased’s executor and left the whole of her estate to him “PROVIDED ALWAYS that if any child of mine shall die in my lifetime leaving a child or children living at my death, then such child or children attaining the age of eighteen (18) years shall take by substitution and if more than one as tenants-in-common equally the share in my residuary estate which his, her or their parent would otherwise have taken”.

46. Apart from naming the plaintiff as the deceased’s sole beneficiary, in substitution for a will that made provision for both the plaintiff and the defendant, the form of the 2014 will is substantially the same as the form of the 2012 will.

47. The 2014 will carries “a cover sheet of Marando Solicitors”. The deceased’s execution of the will was witnessed by Mario Marando and a legal secretary from his office (Earina Del Princpe).

Doubts about “Knowledge and Approval”

48. The form of the “proviso” to the gift clause in each of the two wills does not sit comfortably with the gift to which it relates. It would make sense if, as one might infer was the deceased’s original intention, her estate was to be left to her two children, but not if there was only one “child” beneficiary named in the will.

49. Whether (and, if so, how) the gift clauses were understood by the deceased (if she understood them at all) is not clear. Whether either will was read by, or to, the deceased at the time of execution is not known to the Court but, presumably, is within the personal knowledge of the solicitor for the plaintiff and members of his staff.

50. It is at least arguable that the form of each will was not regular and rational on its face so as to give rise to presumptions that, when she executed the will, the deceased had testamentary capacity and knew and approved the will’s contents. Cf, Tobin v Ezekiel (2012) 83 NSWLR 757 at [44]-[55].

“Undue Influence”?

51. Introduction. Casting a wide net, the defendant has foreshadowed a challenge to the validity of the 2014 will (and possibly the 2012 will) on the ground of “undue influence” of the plaintiff in procuring the deceased’s execution of the wills.

52. Whether such a challenge would be based upon the probate concept of “undue influence” (conventionally described as “coercion” of a type that requires a finding that a will was not that of the testator but of some other person, recently described by the Court of Appeal in Schwanke v Alexakis [2024] NSWCA 118) or “equitable undue influence” (of the type contemplated by a majority of the High Court of Australia in Bridgewater v Leahy (1998) 194 CLR 457 at [62]-[63]), is unclear.

53. Whether there is any scope for the equitable principles governing undue influence on a challenge to the validity, or operation, of a will might, in due course, attract the attention of the High Court as a question of “public importance” (Schwanke v Alexakis [2024] HCASL 246; Cam**illeri v Alexakis [2024] HCASL 274) but in these proceedings there is no clear, present evidentiary foundation for an allegation of either equitable or probate undue influence.

54. From the perspective of the defendant, without the means of obtaining basic information presently within the knowledge of the plaintiff and his solicitor, he is not in a position to make a reasoned judgement about whether there is an objective foundation for his suspicion of “undue influence”, however defined.

55. A question for determination in this judgment is whether the defendant should be allowed an opportunity (and, if so, the nature of that opportunity) to engage the Court’s interlocutory processes sufficient to allow him to make a judgement about whether there is an objective foundation for his suspicion of “undue influence”.

56. The Law, Practice and Procedure. The question whether the equitable principles governing undue influence in relation to an int**er vivos transaction can operate on a challenge to the validity or operation of a will is the subject of obit**er by both the High Court (in Bridgewater v Leahy) and the Court of Appeal (in Schwanke v Alexakis). The High Court’s obiter favours an affirmative answer to the question. The Court of Appeal’s obiter emphatically favours a negative answer.

57. Faced with this state of affairs, I apprehend that a primary judge in the Supreme Court of NSW should follow the Court of Appeal, but allow a litigant at the first instance level of the court hierarchy to lead evidence and to make (at least formal) submissions to establish a case for inviting the Court of Appeal to reconsider the question on the merits in the particular proceedings or to ground an application for special leave to appeal to the High Court.

58. Viewed in the abstract (without regard to the facts of a particular case), the state of the law does not, at the level of a primary judge, permit or warrant summary disposal of a case for the operation of “equitable undue influence” principles on a challenge to the validity or operation of a will. Whether the obiter of the High Court is to prevail over that of the Court of Appeal is not within the province of a primary judge to decide. The function of a primary judge in this situation is to direct attention to what is required at first instance to allow all questions in controversy to be dealt with fairly. What, in particular, is required is a precise presentation of any allegation of “undue influence”, mindful of the differences between what are commonly described, in binary terms, as “equitable” and “probate” undue influence.

59. If a case of “equitable undue influence” is to be advanced in a probate suit in reliance upon the obiter of the High Court in Bridgewater v Leahy any pleading of that case should stay within the ambit of what was written by Gaudron, Gummow and Kirby JJ at 194 CLR 474-475 [62]-[63], here reproduced (omitting footnotes, with emphasis added):

“The issues

[62] The position taken by courts of probate has been that to show that a testator did not, by reason of undue influence, know and approve of the contents of the instrument propounded as a testamentary instrument, “there must be — to sum it up in a word — coercion”. The traditional view, repeated by Sir Frederick Jordan, has been that a court of equity will not, on the ground of undue influence as developed by the Court of Chancery, set aside a grant made by a court of probate.

[63] The approach taken in the probate jurisdiction appears to be concerned with the existence of a testamentary intention rather than the quality of that intention or the means by which it was produced. It is a concern of this latter nature which finds expression in the treatment by equity of dispositions inter vivos. In the present litigation, with respect to the dispositions made by the will, no party submitted that equity might apply or extend its principles respecting undue influence and dispositions inter vivos, not to attack a grant of probate itself, but to subject property passing under a will to a trust in favour of the residuary beneficiaries or the next of kin.”

60. There are two essential points here. First, the High Court opined that “probate undue influence” focuses upon the actual state of mind of a testator in determination of the ultimate question whether a particular instrument was the last will (a formal expression of testamentary intention) of a free and capable testator, rather than the quality of that intention and how it was formed. “Equitable undue influence”, by contrast, is concerned with both the quality of a testator’s intention and how it was formed.

61. Secondly, the High Court’s recognition that a finding of equitable undue influence might “not … attack a grant of probate itself, but … subject property passing under a will to a trust” aligns with contemporary experience of the law of succession in NSW.

62. Equity commonly intervenes in the administration of a deceased estate in a way that affects the operation of a will admitted to probate by attaching to the estate a declaration (together with consequential orders giving effect to the declaration) that property forms, or does not form, part of the deceased’s estate.

63. Social and Historical Context. In a society in which “elder abuse” is perceived to be rife (largely because of opportunities for abuse arising from misuse of an enduring power of attorney), estate litigation commonly involves a pattern of conduct inviting a claim by an estate representative for recovery of property or equitable compensation (in augmentation of an estate) arising from an allegation of undue influence, unconscionable conduct or a breach of fiduciary obligation involving an inter vivos transaction.

64. In that same society, increasingly given to informal arrangements for succession to property, estate litigation commonly involves diminution of an estate by recognition of a pattern of conduct giving rise to a claim against an estate for a declaration that an estate asset is held on trust for the claimant based, inter alia, upon principles governing a proprietary estoppel by encouragement; a common intention trust; a joint endeavour trust; or a contract to make a will, and not revoke it.

65. Whether leading to augmentation or diminution of a deceased estate, probate litigation is commonly associated with a “trust claim” that affects the operation of a grant of probate or administration “without attacking the grant itself”.

66. In a modern setting, the administration of a deceased estate commonly involves, in the one set of proceedings, an exercise of the Supreme Court’s probate and equity jurisdictions and (under Chapter 3 of the Succession Act 2006 NSW) the family provision jurisdiction.

67. If the obiter of Bridgewater v Leahy were to represent the law then, upon an exercise of equity jurisdiction, the Court could focus on the formation of a testator’s state of mind for the purpose of declining to give effect to an instrument execution of which by the testator was procured by the unconscientious conduct of another in the particular case. This could enable the Court to identify and maintain standards of conduct in a way not open upon an application of probate jurisdiction alone.

68. As the Court of Appeal noticed in the Schwanke v Alexakis, the question whether equitable principles should be applied in a probate setting predates Bridgewater v Leahy*,* as can be illustrated by reference to the NSW Law Reform Commission’s Report 47 (1986) - Community Law Reform Programme: Wills -The Execution and Revocation, paragraphs [8.31]-[8.35], here reproduced without footnotes:

“V. POSTSCRIPT: UNDUE INFLUENCE AND THE LAW OF WILLS

8.31 Gifts other than by will which are made in favour of persons who are in a relationship of influence over the donor will be set aside in equity unless the donee satisfies the court that no “undug' [sic] influence has been used. For the purpose of this equitable doctrine, certain classes of relationship are presumed to be ones of influence (eg doctor and patient, solicitor and client, parent and child). In other cases the relationship must be established by evidence. But once the relationship is shown to be present the donee must satisfy the court that the gift was the independent and well-understood act of a person in a position to exercise a free judgment. The jurisdiction is broad and flexible and the court will look at all relevant factors, including the size of the gift, the presence or absence of independent advice, and the strength of the dominance in considering whether to allow the gift to stand.

8.32 But for gifts by will there are no presumptions of influence: persons wishing to challenge the validity of gifts by will on this ground must prove that the particular relationship between the testator and the beneficiary was one in which the latter exercised dominance. Furthermore, “undue” influence in the probate area means coercion. No amount of persuasion or pressure that falls short of inducing a testator to do that which he or she does not wish to do will suffice to invalidate the will. The result is that undue influence in probate matters is virtually a dead letter.

8.33 [The then legislation governing gifts to interested witnesses to the execution of a will and proposals made by the Commission for an amendment of that legislation] are, in one sense, blunt and limited attempts to give to the law of wills some of the controls which the equitable doctrine of undue influence provides over gifts by living persons. So too are the rules which the courts have developed to test whether a will prepared by a beneficiary has truly been known and approved by testator. But these controls fall far short of the equitable doctrine.

8.34 The strict law of probate thus permits if not encourages pressure, particularly on the old and feeble. This has lead one of our consultants to suggest that the equitable principles, including presumptions of influence, should be introduced into the law of wills. Of course beneficiaries are frequently and naturally the very persons who do have degrees of influence over testators, if only because they are persons who care for them in their declining years. Testators would remain free to favour them, but the equitable rules would encourage the use of independent advisers to a greater degree than at present. Against this, the extension of the equitable rules into the probate area would undoubtedly lead to much litigation which would supplement the disputes under the Family Provision Act, 1982 which is the main vehicle through which allegations of “undue” influence are attempted to be ventilated at present. The Queensland Law Reform Commission has, in a different context, expressed the view that “it is ... undesirable to offer too much scope for litigation in an area where family passions regrettably all too often override reasonable expectations”. Such comments may well apply to the suggestion discussed in this paragraph

8.35 With some hesitation the Commission has decided to make no recommendations in this area at this stage. They would probably go beyond the scope of the reference The Commission would however welcome further comments on this vexed issue.”

69. The “consultant” referred to in paragraph [8.34] was identified in a footnote as “the late Mr Justice Hutley”, a leading probate lawyer of his generation.

70. The Commission’s hesitant decision “to make no recommendations in this area at this stage” marks its “postscript” on “undue influence and the law of wills” as an administrative equivalent of obit**er. Nevertheless, it provides historical context for what fell from the High Court a dozen years later, even though minds may differ about the Commission’s characterisation of a family provision claim (now governed by Chapter 3 of the Succession Act 2006 NSW) as a “vehicle through which allegations of ‘undue’ influence are attempted to be ventilated”.

71. The Court of Appeal in Schwanke v Alexakis canvassed the Commission’s Report and other law reform reports.

72. Since that time the Law Commission of England and Wales has published a Report entitled Modernising Wills Law. The Report and a draft Bill were published on 16 May 2025.

73. I am far from persuaded that Australian law should follow the English down a path of legislative codification of the law of succession, which is the tendency of the Law Commission’s recommendations. However, there is some resonance between its perception of current day problems and those commonly experienced in Australia.

74. The Law Commission’s Summary of the Report summarises Chapter 9 of the Report relating to the law of testamentary undue influence in the following terms (with emphasis added):

“Protecting Testators

Throughout our project, we have considered whether the law sufficiently protects testators, particularly vulnerable testators. Testators might be vulnerable for many reasons. Common reasons might be extreme old age; recent bereavement; illness; or dependency on others for their care. We make some key recommendations to ensure the law safeguards testators from abuse: enabling the court to make an inference that a testator made their will subject to undue influence where there are reasonable grounds to suspect that is the case; providing that gifts to the cohabitants or witnesses and those who sign on the testator's behalf are invalid; and abolishing the rule that when a person marries or enters a civil partnership their existing will is automatically revoked.

The law of testamentary undue influence

One way of protecting testators, and particularly vulnerable testators, is through the law of undue influence. Where a testator has made a will (or a gift in a will) as a result of coercion, meaning pressure which overpowered their mind without convincing them it was what they wanted to do, the will (or gift) is invalid. Currently, if someone wants to challenge a will on the basis that the testator has been unduly influenced, they have the burden of proving it. But undue influence is difficult to prove, particularly if there is only circumstantial evidence, as is often the case. The court is likely to find that the testator was persuaded legitimately, rather than coerced.

We think that it is too difficult to challenge a will on the basis of undue influence, because of the difficulties of proving it. The fact that undue influence often happens behind closed doors and by someone close to the testator may in some cases present an insurmountable hurdle to establishing that the testator was coerced, particularly after the testator has died. We believe that the law is not, therefore, adequately protecting vulnerable testators from financial abuse.

In order to provide better protection to testators (and particularly to vulnerable testators), we recommend that it should be possible for the courts to infer that a will was brought about by undue influence***, where there is evidence which provides reasonable grounds to suspect it*****.**

When undue influence is alleged if there is evidence to provide reasonable grounds to suspect undue influence, the court will be able to infer that undue influence took place. ln determining whether there are reasonable grounds, the court must consider, among other factors, any relationship of influence between the person alleged to have exerted undue influence and the testator; that person's conduct in relation to the making of the will; and the circumstances in which the will was made.

If the court does infer that undue influence occurred, the evidential burden will shift to the person seeking to prove the will to satisfy the court, on the balance of probabilities, that undue influence did not take place, and that the will did fact reflect the testator's own freely formed intentions. Our recommendation will mean that, in appropriate cases, the person who is most able to speak to the circumstances in which the testator made their will - that is, the person who is alleged to have unduly influenced the testator- will be required to provide an explanation that satisfies the court in order for the will to be valid. This recommendation will therefore help to ensure that this type of financial abuse does not go unaddressed.

We make this recommendation about undue influence in the context of a further recommendation that places into statute the requirement for “knowledge and approval”. This is the requirement that the testator intended to make the will in the terms that they did, so that they understood the contents of the will and its effects.

We were concerned that there had been a tendency for wills to be challenged on the basis of a lack of knowledge and approval in circumstances where the real concern appears to be about undue influence, that is, that the testator understood the content an effect of their will but it did not reflect their own intentions. Putting the requirement for knowledge and approval on a statutory footing will clearly differentiate it from the law of undue influence.”

75. The Law Commission’s stated aims of their project (with emphasis added) were “to make recommendations to reform the law so that it better:

76. supports the exercise of testamentary freedom;

77. protects testators, including from undue influence and fraud; and

78. increases clarity and certainty in the law where possible.

79. A recurrent theme in the Commission’s Report is a need to protect vulnerable testators, in the service of testamentary freedom, deploying a standard of “reasonable grounds”.

80. I also note, in passing, that the Commission bracketed together “undue influence” and “fraud”, a common feature of discussions of the law of succession despite the independent nature attributed to each concept. In practice, there is an affinity between allegations of “undue influence” and “fraud” just as there is an affinity between allegations of “a want of testamentary capacity” and a “want of knowledge and approval”, each of which is a concept subordinate to the ultimate question of whether a will is the last will of a free and capable testator.

81. An introductory paragraph of the Commission’s Report provides the following context:

“The law governing wills is largely a product of the Victorian era. It is governed by both legislation - primarily, the Wills Act 1837 - and caselaw, some of which has been developing for hundreds of years. Although in some respects the law of wills has been able to respond to modern circumstances and understandings, it has not been comprehensively reviewed for nearly two hundred (200) years. This project has sought to ensure that the law governing this important topic remains fit for purpose today, by making recommendations for a modern law of wills.”

79. By its Report, the Commission recommended that the Wills Act 1837 be repealed and replaced by a new Act adapted to modern conditions. The significance for NSW of this is that the English Act of 1837 was adopted in NSW in 1840 and its essential features continue to inform NSW legislation. The fact that the 1837 Act has been the subject of critical review in England may provide an occasion to consider whether local Australian law has any lessons to learn from English experience. In the realm of “undue influence” the problems which the English Commission proposes be addressed by legislation might, in Australia, be addressed by adoption of the High Court’s obiter in Bridgewater v Leahy.

80. In Schwanke v Alexakis the Court of Appeal discounted the possibility that a change in rules of court may have played a part, or have a part to play, in consideration of “the onus of proving undue influence”.

81. In doing so the Court nevertheless noticed Leeming JA’s analysis in Lewis v Lewis (2021) NSWLR 487 at [131]-[136] of how “knowledge and approval” first seems to have been recognised as an element of a valid will in 1865 (rather than by reference to Barry v Butli**n (1838) 2 Moo PC 480; 12 ER 1089 as commonly thought) with a process of change connected with changes in pleading, procedure and practice in a probate suit following displacement of Ecclesiastical Courts by a secular Court of Probate in England in 1857, effecting reforms not embraced in New South Wales for some time after that date.

82. In paragraph [136] of his judgment Leeming JA made the following observations of present interest:

“The process is illuminating in a number of respects. It illustrates the way in which a change in procedure - the introduction of common law pleading or something like it in the new Court of Probate after 1857 - led to the formal recognition of a new element of a valid will. It shows the development of the law through decisions on pleadings, bearing in mind that it was the opaque and unreported verdicts of juries which would determine at trial whether the testator knew and approved the will. Both are examples of Maitland's aphorism that substantive law is secreted in the interstices of procedure. And it also indicates how elusive the distinction between statute law and judge-made law can be, for it is difficult to give any concise answer which is wholly accurate to the question whether the requirement of knowledge and approval arose from statute or the decisions of courts; cf Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 at (122].”.

83. These observations may have resonance in charting subtle changes in the meaning and operation of the concept of “undue influence” in 19th century England. There appears to have been a more flexible concept of “undue influence” (associated with a concept of “improper conduct”) in the management of a probate suit by an Ecclesiastical Court (and, perhaps, Chancery) before the law of wills was taken over by Common Lawyers in the plethora of law reforms and changes in jurisprudence identified with the 19th century: Cf, Edward Vaughan Williams*, Treatise on the Law of Executors and Administrators* (Philadelphia, 1832), Volume 1, Chapter 1, Section 2, pages 33-38, paragraphs [34]-[38].

84. The Wills Act 1837 may not, of itself, have changed much about the concept of “undue influence” in a probate suit, but significance may attach to its displacement of the requirements for a valid will prescribed by the Statute of Frauds 1677 and it may have been a material factor in combination with other changes in the English legal system in the 19th century which favoured the development of ostensibly rational, rule-based reasoning associated with “scientific” systemisation of the law and legal literature: cf, AWB Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature” (1981) 48 University of Chicago Law Review 632, reprinted as Chapter 12 in Simpson, Legal Theory and Legal History (Hambledon Press, 1987).

85. If we take seriously the proposition that 25 July 1828 is the date upon which (by virtue of the Australian Courts Act 1828 (Imp), section 24) English law was “received” in the Colony of New South Wales, then a curious mind might wonder whether the English Wills A**ct 1837 requires that closer attention be given to the approach earlier taken to “undue influence” by the English Ecclesiastical Courts.

86. In giving attention to decisions of the English Ecclesiastical Courts, regard should be had to the fact that at the time the Supreme Court of NSW was established and vested with jurisdiction (by the New South Wales Act 1823 (Imp), in combination with the Third Charter of Justice promulgated under that Act and the Australian Courts Act 1828 (Imp)) the Court was (with the notable exception of divorce law) granted plenary jurisdiction by reference to the jurisdiction exercised by nominated English courts and judicial officers. This was more than the several, separated judicial authorities of England had themselves.

87. The NSW Supreme Court’s jurisdiction included specifically ecclesiastical jurisdiction at a time when England's secular courts had no ecclesiastical jurisdiction, save for appeals to the Privy Council. Admittedly, as the Colony of New South Wales developed and English courts embraced a centralist approach to judicial precedent throughout the British Empire local “probate jurisdiction” (as, in New South Wales, the ecclesiastical jurisdiction became known only in 1890) generally followed English precedents; but, in reading English caselaw as it developed in the 19th century, care needs to be taken not to limit the nature and breadth of the Court’s jurisdiction by changes of practice and procedure in English courts as they moved towards the Judicature Acts of 1873 and 1875 (UK).

88. At least some of the mid-19th century discussion about the intersection of the ecclesiastical and equity jurisdictions, in the context of “undue” or “improper” influence, was directed to a proposition that resort could not be had to Chancery in a case which was within the province of an Ecclesiastical court.

89. That proposition may be viewed as directed to practice and procedure rather than the substantive law as understood by a modern lawyer.

90. A comprehensive treatment of historical shifts in terminology and their contemporary significance can be found in Yazdani, “T**estamentary Undue Influence - A Historical Overview” (2023) 53 Australian Bar Review 182.

91. The following extract from a book of lectures published by the English Council of Legal Education in 1901, entitled A Century of Law Reform*:* Twelve L**ectures on the C**hanges in the L**aw of England during the 19th C**entury, at pages 320-322, taken from a lecture by Dr Arthur Underhill provides (with emphasis added) an historical context that viewed the law of wills as an adjunct of “the practice of conveyancing” (a perspective to which the law might be returning as a will becomes a standard accompaniment of an enduring power of attorney in anticipation of incapacity on the road to death):

“The Practice of Conveyancing.

So far I have been dealing with the changes in the general law of real estate. I now propose to draw your attention to changes relating to instruments by which the ownership of real estate is transferred from one person to another. Such transfers occur either mortis causa-in plain English, by wills-or inter vivos-i.e. by transfers made by living persons.

In the early part of the 19th century, a will of real estate had, under the provisions of the Statute of Frauds, to be witnessed by three credible witnesses. If one of them was considered to be “ incredible “ (for instance if he were a convict, or even if he took beneficially under the will,) the entire will was void. Moreover, every general devise of land spoke from the date of the will, and not from the death of the testator; so that no freehold land acquired after the date of the will passed by it, unless the will was confirmed by a subsequent codicil. A devise of real estate without words of limitation, only prima facie passed a life estate to the devisee-a shocking injustice in the frequent case of an unlearned testator making his own will.

Copyholds, too, could not be devised at all, except by special custom, unless they were surrendered to the lord to uses to be declared by the will, or unless they were vested in trustees; so that, unless the formality of a surrender, or the creation of a previous trust had been effected, the will was useless so far as Copyholds were concerned. This absurdity was removed in 1815, by the Act 55 Geo. III. c. I 92, which rendered devises of copyholds, though not surrendered to the use of the testator's will, as valid as if they had been so surrendered. It conferred no new testamentary power, but merely supplied a simpler form of procedure.

However, the great reform of the century in relation to the law of wills, was made in 1837 by the Wills Act. By this Act a will is to be signed in the presence of two witnesses, instead of three, and the credibility of the witnesses is not to affect the validity of the will ; but where a witness, or his or her husband or wife, is beneficially interested under the will, the will is good, but the gift to the witness is void. Wills are to speak, with regard to the real and personal estate comprised in them, from the death of the testator, and not, as formerly, from the date of the will. A gift to a child or other issue of the testator, who dies before him, leaving issue, no longer lapses as formerly, but takes effect as if the donee had died immediately after the testator.

The Wills Act also put the subject of revocation of wills on a better footing, providing that, among other acts, marriage should be an effectual (although perhaps an expensive) revocation. The act also made a general devise of lands, to include not only lands belonging to the testator, but also lands over which he has a general power of appointment.

But perhaps the most important change introduced by the Wills Act was the provision that, where real estate is devised to a person without words of limitation, it is to be construed as passing the fee simple, or other the whole estate of the testator, unless a contrary intention shall appear, thereby completely reversing the former rule.

There were other changes introduced by the Wills Act, too numerous or too technical to mention here, but those which I have specified were the most important.

Let us now turn to transfers of real estate by act inter vivos. At the commencement of the century, conveyances of land on sale were usually carried out by the method known as a lease and release. In some cases, however, the time-honoured feofment with livery of seisin continued to be used. As I said in the last lecture, married women could only convey by means of the costly process called a fine, and tenants in tail by the still more costly process of a Common Recovery, for both of which simple deeds were substituted in 1833.

You will remember that the lease and release was an ingenious method of making conveyances without livery of seisin, depending for its efficacy on the

Statute of Uses. A vendor first made a bargain and sale of the property to the purchaser for a year in consideration of 5s. Under the Statute of Uses this immediately vested the legal possession in the purchaser. Being thus in legal possession, the reversion which still remained in the vendor, was capable of being released by another deed, in which the true consideration for the transaction appeared. This method required two instruments, and was cumbersome and expensive ; and it is astonishing that it took several centuries before its absurdity struck Parliament. It was not until 1841 that any attempt was made to put the matter on a more rational footing.”

92. Although the meaning of “probate undue influence” is settled in contemporary Australian law an examination of the intersection between the probate and equity jurisdictions in the present day may require an appreciation that, before its eclipse in the 19th century in England, “ecclesiastical jurisdiction”, may have had a broader field of operation than its progeny, “probate jurisdiction”, and the “equity jurisdiction” has, by its very nature, always had a capacity to adapt to time, place and the circumstances of a particular case.

93. Case Management Considerations. In any event, in case management terms, a party currently challenging the validity of a will on the ground of “probate undue influence” in this Court can, and should, plead that ground in a defence to the statement of claim relied upon by a party propounding the will. In that case, given the traditional form of “issue pleadings” in a probate suit (reminiscent of pre-Judicature Act common law pleadings), the allegation of undue influence can be made in general terms, coupled with particulars.

94. A party who seeks, in this Court, to challenge the operation of a will on the ground of “equitable undue influence” ordinarily should do so by a cross claim pleading in a narrative form the allegations of fact said to establish a case for equitable intervention. Such a cross claim might be filed in conjunction with a defence to the statement of claim which pleads that, should a grant of probate be made, the grant should be expressed to be subject to a trust or whatever other equitable relief might be granted on the cross claim.

95. Deployment of a cross claim as a vehicle for consideration of a dispute about the operation in a probate suit of the principles relating to equitable undue influence may be procedurally important for several reasons:

(a) first, use of a cross claim to plead a case of “equitable undue influence” highlights the conceptual differences between a “prayer” for equitable relief and the character of “probate undue influence” as a defence against admission of a will to probate. (b) Secondly, a cross claim may be necessary, or at least convenient, to accommodate a joinder of parties, bearing in mind the different approaches to parties in probate and equity proceedings (Boyce v Bunce [2015] NSWSC 1924 at [44]-[53] and [198]-[200]; Boyd Thorn (2017) 96 NSWLR 390 at [94]-[102]). (c) Thirdly, deployment of a cross claim facilitates a narrative pleading directed to equity’s traditional perspective of taking into account “all the circumstances of the case” in contrast to the probate jurisdiction’s focus on identification of “an issue” for determination.

96. At the intersection of the equitable and probate jurisdictions of the Court the relief granted might not take the form of declaration of trust. It would be open to the Court, having found that a particular gift of property in a will was procured by undue influence as understood on an application of equitable principles, either to:

(a) declare that the property the subject of the gift is held on trust for the residuary beneficiaries named in the will or for the “next of kin” upon a partial intestacy (as contemplated in Bridgewater v Leahy); or (b) decline to admit that part of the will to probate (according to principles confirmed by the Court of Appeal in Lewis v Lewis (2021) 105 NSWLR 487 at [189]-[208]), with a consequence that the affected property falls to be dealt with as part of the deceased’s residuary estate or to pass on a partial intestacy (an outcome similar to that contemplated in Bridgewater v Leahy).

97. Each of these approaches is consistent with the Court’s control of its own processes. Leaving aside debate about whether a trust is characterised as “remedial” or “constructive”, an order imposing a trust on the operation of a grant of probate (or administration) of a will is commonplace. In any event, a grant is both an order of the Court and an instrument of title that derives its authority from the fact it is an order of the Court (even if, in defining the function of the Court in admitting a will to probate, a distinction is drawn between a grant of probate of the will and a grant of administration with the will annexed): Estate Kouvakas*; Lucas v Konakas* [2014] NSWSC 786 at [228]-[233].

98. In concept, a finding that a will, or part of a will, was tainted by “equitable undue influence”, could carry the same consequences in a probate suit as a finding that a will, or part of a will, was invalid for “a want of knowledge and approval” or because procured by “undue influence” (coercion) or “fraud” (misleading and deceptive conduct) in the sense understood on an exercise of probate jurisdiction.

99. A scheme of pleadings designed to make explicit the different fields of operation of the Court’s probate and equity jurisdictions is likely to crystallise debate more effectively than a single pleading that blurs different concepts.

100. Although the High Court identified as an equitable remedy “a trust in favour of the residuary beneficiaries or the next of kin”, regard should be had to the Court’s reminder that equitable relief is moulded to do “practical justice” between contending parties: Vadasz v Pioneer C**oncrete (SA) Pty Ltd (1995) 184 CLR 102 at 111-115; Bridgewater v Leahy at [126]-[128].

101. A Critique of the Case “For” Equitable Undue Influence in a Probate Suit. The unsuccessful challenges to the will admitted to probate in Schwanke v Alexakis may have fallen short in five respects.

102. First, they evidently sought to import into probate proceedings (bearing upon the validity, rather than merely the operation, of a will) equitable principles of general application to in**ter vivos transactions, not merely equitable principles governing undue influence.

103. Secondly, they apparently sought to import into a probate suit equitable presumptions, superimposed on probate presumptions (attributing to all such presumptions a status more formal than inferences of fact drawn from common experience without a full examination of the different purposes served by different “presumptions”), focusing attention on questions of “onus of proof” at the expense of a primary focus on the essential character of a finding of equitable undue influence.

104. Thirdly, they did not make explicit the essential character of equitable undue influence as articulated in Quek v Beggs (1990) 5 BPR 11,761, by reference inter alia to Johnson v Buttress (1936) 56 CLR 113.

105. Fourthly, they focused no concentrated attention on the possibility that insights about the role of “undue influence” (by whatever name known) relating to the validity or operation of a will might be had from historical research relating to the practice of Ecclesiastical Courts before enactment of the Wills Act 1837.

106. Fifthly, and critically, they failed to persuade the primary judge or the Court of Appeal that there was any material impropriety in the conduct of the beneficiary of the will ultimately admitted to probate.

107. The issue raised by Bridgewater v Leahy would have arisen more directly for the Court of Appeal had the primary judge or the Court of Appeal itself found as a fact that the will under challenge was tainted by impropriety.

108. The fact that in a different forum (governed by a different jurisdiction and applying different legal criteria) the beneficiary was the subject of adverse findings in disciplinary proceedings as a medical practitioner (Health Care Complaints Commission v Alexakis [2023] NSWCATOD 99; Health Care Complaints Commission v Alexakis (No 2) [2024] NSWCATOD 82) was not, on the evidence before the Court, taken as impropriety affecting characterisation of the will as an expression of the actual testamentary intentions of a free and capable testator.

109. Bridgewater v Leahy provides an opportunity for a review of the law relating to “undue influence” in a probate setting. It does not, however, provide a licence for a party to assert a broader case in equity by reference to concepts, often found in combination with an allegation of undue influence but distinctly different, relating to an allegation of “unconscionable conduct (commonly described by reference to Blomley v Ryan (1956) 99 CLR 362 or Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447) or a “breach of fiduciary obligations” (commonly explained by reference to Hospital Products Ltd v US Surgical Corporation (1984) 156 CLR 41 at 68, 96 and 141).

110. As is made clear in the classic judgment of Dixon J in Johnson v Buttress (1936) 56 CLR 113 at 134-136 the operation of the equitable principles governing “undue influence” does not depend upon the existence of a “presumption of undue influence” arising from an established category of relationship such as “solicitor and client”, “doctor and patient “ or “priest and penitent”.

111. In Quek v Beggs (1990) 5 BPR 11,761 at 11,764-11,765 McLelland J insightfully summarised the principles governing equitable undue influence in the context of an inter vivos gift:

“Generally speaking, the law permits a person of full age and capacity to dispose of his or her property by gift or otherwise in such manner as he or she may choose. However in certain recognised categories of case, principles of equity intervene to render such a gift liable to be set aside by the court. One of those categories is where the donor makes the gift as a result of “undue influence” of the donee. In this context “influence” means a psychological ascendancy by the donee over the donor, and “undue influence” means the donee’s taking improper advantage of such ascendancy: Union Bank of Australia Ltd v Whitelaw [1906] VLR 711 at 720 . It is not necessary that the ascendancy amount to domination: Goldsworthy v Brickell [1987] Ch 378 at 402–6 .

A donor (or if he or she is deceased, a representative of his or her estate) will prima facie be entitled to have a gift set aside on the ground of undue influence upon proof of:

(a) facts establishing that the gift was made by the donor as a result of undue influence of the donee; or

(b) facts that give rise to a presumption that the gift was so made, unless the donee rebuts the presumption in the manner mentioned below.

A presumption of undue influence arises if it is proved:

(a) that at the time the gift was made there existed a relationship between the donor and the donee of such a nature as to involve reliance, dependence or trust on the part of the donor resulting in an ascendancy on the part of the donee; and

(b) that the gift is so substantial, or so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary persons act: Allcard v Skinner (1887) 36 Ch D 145 at 185 ; Johnson v Buttress (1936) 56 CLR 113 at 134–5; Yerkey v Jones (1939) 63 CLR 649 at 675; Goldsworthy at 400–1.

In such cases, “the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused”: Allcard at 171 per Cotton LJ, applied in Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 at 133 ; Bank of New South Wales v Rogers (1941) 65 CLR 42 at 85 ; Antony v Weerasekera [1953] 1 WLR 1007 at 1011, PC. The donee “has chosen to accept a benefit which may well proceed from an abuse of ‘his position of ascendancy “and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction. These considerations combine with reasons of policy to supply a firm foundation for the presumption against a voluntary disposition in his favour”: Johnson at 135.

The relationships capable of giving rise to the presumption include certain well defined categories (such as parent and young child, solicitor and client, doctor and patient) but are not limited to those categories: see Goldsworthy at 401; Johnson at 134–5, Tufton v Spemi [1952] 2 TLR 516 at 522 , applied in Antony at 1011; Whereat v Duff [1972] 2 NSWLR 147 at 167, affirmed on other grounds (1973) 47 ALJR 540 . They include relationships of various kinds arising from or associated with activities or beliefs of a religious or supernatural kind: see, for example, Norton v Reily (1764) 2 Eden 286 ; 28 ER 908 ; Huguenin v Baseley (1807) 14 Ves Jun 273 ; 33 ER 526 ; Nottidge v Prince (1860) 2 Giff 246 ; 66 ER 103 ; Lyon v Home (1868) LR 6 Eq 655 ; Allcard v Skinner (1887) 36 Ch D 181 ; Morley v Loughnan [1893] 1 Ch 763 ; Austin v McCaskill (1922) 70 DLR 819 ; Chennells v Bruce (1939) 55 TLR 422 .

Whether in any particular case a relationship in a religious context will be sufficient to found the presumption will depend upon whether the evidence establishes a reliance, dependence or trust on the part of the donor leading to a correlative ascendancy on the part of the donee capable of influencing the making of the gift in question.

The donee may rebut the presumption of undue influence, when it arises, by proving that the donor (i) knew and understood what he or she was doing; and (ii) was acting independently of any influence arising from the ascendancy of the donee: see Lancashire Loans Ltd v Black [1934] 1 KB 380 at 409 ; West v Public Trustee [1942] SASR 109 at 119 ; Inche Noriah at 135; Wright v Carter [1903] 1 Ch 27 at 52, 57 .

It is not sufficient to prove only the first of these elements. In the frequently quoted words of Lord Eldon LC in Huguenin at 300 [ER 536], “The question is, not, whether she knew what she was doing … but how the intention was produced”, to which Sir John Romilly MR added in Hoghton v Hoghton (1852) 15 Beav 278 at 299 ; 51 ER 545 at 553 , “and though the donor was well aware of what he did, yet if his disposition to do it was produced by undue influence, the transaction would be set aside”. See also Harris v Jenkins (1922) 31 CLR 341 at 368 ; Bank of New South Wales v Rogers (1941) 65 CLR 42 at 54, 85 ; Zamet v Hyman [1961] 1 WLR 1442 at 1447; Whereat.

Nor in relation to the second element is it necessarily sufficient to prove that the proposal to make the gift came from the donor (*Spong v Spong (*1914) 18 CLR 544 at 549 ; Whereat at 169) or that the donee took no active steps to procure the gift: Allcard at 183–4, 185–6; Wright at 52–3.

The matters which in a particular case will need to be proved in order to rebut the presumption will depend upon the nature and incidents of the relationship on which the presumption is founded, since the influence which arises from different kinds of relationships varies in kind and degree: Johnson at 134. Influence of a religious kind may be both powerful and difficult to detect. In Allcard, Lindley LJ said (at 183):

But the influence of one mind over another is very subtle, and of all influences religious influence is the most dangerous and the most powerful, and to counteract it Courts of Equity have gone very far. They have not shrunk from setting aside gifts made to persons in a position to exercise undue influence over the donors, although there has been no proof of the actual exercise of such influence; and the Courts have done this on the avowed ground of the necessity of going this length in order to protect persons from the exercise of such influence under circumstances which render proof of it impossible.”

112. The principles governing equitable undue influence may be capable of supplementing a challenge to the validity or operation of a will in three ways.

113. First, Equity could locate a primary focus of the Court’s attention upon whether:

(a) a testamentary gift was the product of a psychological ascendancy of another person over the deceased (arising from that person taking improper advantage of that ascendancy, not necessarily amounting to domination); (b) at the time a will was executed, there existed a relationship between the deceased, and the person in whose interests a gift was included in the will, of such a nature as to involve reliance, dependence or trust on the part of the deceased, resulting in an ascendancy on the part of the interested person; and (c) the gift was so substantial, or so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary persons act.

114. Secondly, Equity could focus attention on whether:

(a) the deceased knew and understood what he or she was doing in making a will; and (b) the deceased was acting independently of any influence arising from the ascendancy of the interested person.

115. Thirdly, upon an application of equitable principles, the Court could interfere with the operation of a will, not on the ground that any wrongful act had in fact been committed by the interested person, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.

116. To speak here of “public policy” is to use language conventionally used in connection with equitable undue influence. It is not an invitation to dwell upon a larger concept.

117. A Critique of the Case “Against” Equitable Undue Influence in a Probate Suit. A countervailing view of the world of a testator favoured by the Court of Appeal in Schwanke v Alexakis, upon an application of probate jurisdiction, might be gleaned from an extended passage from Banks v Goodfellow (1870) LR 5 QB 549 at 563-566, either side of the classic test of testamentary capacity usually quoted at 565, bearing upon the virtues of testamentary freedom.

118. It is not necessary to extract the whole passage. Sufficient to record that Cockburn CJ, at 564, adopted what was written by Chancellor Kent, a distinguished American judge, in Van Alst v Hunter 5 Johnson N.Y. Ch. Rep. at p 159:

“It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attention due to his infirmities.”

119. Chief Justice Cockburn continued:

“For these reasons the power of disposing of property in anticipation of death has ever been regarded as one of the most valuable of the rights incidental to property, and there can be no doubt that it operates as a useful incentive of industry in the acquisition of wealth, and to thrift and frugality in the enjoyment of it. The law of every country has, therefore, conceded to the owner of property Clio right of disposing by will either of the whole, or at all events of a portion of that which he possesses. …

The English law leaves everything to the unfettered discretion of the testator, on the principle that though in some instances caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence may lead to the neglect of claims that ought to be attended to, yet the instincts, affections, and common sentiments of mankind may he safely trusted to secure on the whole a better disposition of the property of the deed, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.”

120. These observations provided a point of entry for Cockburn’s classic test of testamentary capacity.

121. A more explicit comparison between “probate undue influence” and “equity undue influence” (in substance, reflected in the Court of Appeal’s judgment in Schwanke v Alexakis) can be found in WS Holdsworth (the eminent historian of English Law) and CW Vickers, The Law of Succession: Testamentary and Intestate (Oxford, 1899) at pages 68-70 (omitting footnotes):

“In order that influence may vitiate a will, it must be undue, i. e. it must in effect substitute the volition of some one else for that of the testator. The general principle is laid down by Hannen, J., in Wingrove v. Wingrove. 'We are all familiar with the use of the word influence: we say that one person has an unbounded influence over another, and we speak of evil influences and of good influences : but it is not because one person has unbounded influence over another that, therefore, when exercised, even though it may be very bad indeed, it is undue influence in the legal sense of the word … A man may be the companion of another, and may encourage him in evil courses, and so obtain what is called an undue influence over him, and the consequence may be a will made in his favour. But that . . . will not amount to undue in­ fluence. To be undue influence in the eye of the law there must be-to sum it up in a word-coercion. . . . If the testator had only been persuaded or induced by considerations, which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not intend or desire to do that it is undue influence.' Thus, merely to say that the testator has been influenced to make his will is to say nothing as to its validity. The influence must be undue to have that effect; that is, the will must have been executed under the influence of force, fear or fraud.

The fear must be such that it will affect a person of average courage. As an instance of fraud we may take the case of a false representation made to a testator that the principal legatee in his will had tried to poison him, in consequence of which he revoked the legacy.

The person who seeks to invalidate a will on the ground of undue influence must prove that such influence existed. The onus probandi is on him ; for undue influence is never presumed. There is thus an important difference in this respect between a will and a contract. The reasons for this difference are two. (1) In the case of transactions inter vivos, ‘the Court is plainly requiring of him (the party benefited) an explanation within his knowledge. But in the case of a legacy under a will the legatee may have, and in point of fact generally has, no part in, or even knowledge of, the act: and to cast upon him, on the bare proof of the legacy and his relation to the testator, the burthen of showing how the thing came about ... would be to cast a duty on him which in many, if not in most cases, he could not possibly discharge.

(2) 'The influence which is undue in the case of gifts inter vivos is very different from that which is required to set aside a will. In the case of gifts or other transactions inter vivos it is considered by the Courts of Equity that the natural influence which such relations as those in question involve, exerted by those who possess it to obtain a benefit for themselves, is an undue influence The law regarding wills is very different from this. The natural influence of the parent or guardian over the child, or the husband over the wife, or the attorney over the client, may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly under­ stands what he is doing and is a free agent. The difference, then, between the influence which is held to be undue in the case of transactions inter vivos and that which is called undue in relation to a will or legacy is all important when a question arises of making presumptions or of adjusting the burden of proof.'

The way in which the law deals with a will made by a legatee is an illustration of these principles. By the Roman law 'qui se scripserit heredem' could take no benefit under a will. This is not the case in English law. Such a circumstance will not even shift the burden of proof; but it is a circumstance which excites the vigilance of the Court, and leads it to enquire further. It will not necessarily presume from the fact of execution, and the capacity of the testator, his knowledge of and assent to the: contents of the will. What further proof the Court will require must depend on the circumstances of the case. In Barry v. Butlin , the testator left one quarter of his estate to the solicitor who drew the will. Stricter proof was required here than would be required, e.g. in a case where a man of large fortune left his solicitor a legacy of fifty pounds.”

122. The cases referred to by Holdsworth and Vickers in footnotes included, principally, Wingrove v Wingrove (1885) 11 PD 81; Boyce v Rossborough (1857), 6 HLC 1; 10 ER 1192; and Parfitt v Lawless (1872) LR 2 P&D 462, authorities relied upon by Powell J in Winter v Crichton*,* E**state of Gal**ieh (1991) 23 NSWLR 116, the primary authority in NSW for many years until the judgment of the Court of Appeal in Schwanke v Alexakis.

123. Policy Considerations in Context. There is nothing conceptually standing in the way of adoption of the High Court’s obiter in Bridgewater v Leahy, but minds may differ as to the policy implications of that approach and the approach of the Court of Appeal.

124. In weighing different policy considerations (upon an orthodox, incremental exercise of the judicial function) it might be necessary to reflect upon the fundamental changes to Australian law and society effected in or about the 1980s, the implications of which are only now manifesting themselves in experience of elder abuse.

125. Critical legislative reforms effected a redefinition of the concept of agency (with plenary authority granted by an enduring power of attorney, coupled with an enduring guardianship appointment) in anticipation of incapacity before death; an increased informality in the making, and operation, of wills; and a greater degree of flexibility in dealing with management of the affairs (both the estate and the person) of a person who, by disability or otherwise, is incapable of management of his or her own affairs.

126. In the modern era, although a will takes legal effect only upon the death of a testator, it is an integral part of a suite of documents (an enduring power of attorney, an enduring guardianship appointment, a will and, possibly, an advance care directive) which are commonly prepared at one and the same time and, not uncommonly, made the subject of competition between competing claimants on the bounty or property of a vulnerable person. As part of a suite of documents, a will can be presented by an enduring attorney or an enduring guardian as support for plenary authority in self interested transactions effected in breach of fiduciary obligations.

127. A third party dealing with an enduring “agent” of an incapacitated person, with the plenary authority an enduring power of attorney ordinarily confers, may take comfort against the agent’s “self-dealing” by the production of a will.

128. Not uncommonly, an indication of a vulnerable person’s descent into dementia is his or her rapid execution of competing enduring powers of attorney, enduring guardianship appointments and wills as interested persons (for good or ill) jockey for position in capturing the body and person of the vulnerable person.

129. In practice, the boundary currently perceived to separate inter vivos and testamentary transactions (which has told against an application of equitable undue influence in a probate context) has become blurred, at least in the popular imagination.

130. In part, that may be because families routinely invoke the statutory jurisdiction of the NSW Civil and Administrative Tribunal (NCAT), in its Guardian Division, to challenge the validity, or to seek a review, of an enduring power of attorney or an enduring guardianship appointment (executed contemporaneously with a will) without there being an avenue for an inter vivos challenge to the validity of the will save, possibly, via an application (under the Succession Act 2006 NSW) for a court-authorised (“statutory”) will.

131. The Factual Context of these Proceedings. The fact that each of the 2012 and 2014 wills was ostensibly prepared by a solicitor, and executed in his presence, does not necessarily preclude a finding of invalidity on a ground of “undue influence” but it presents a formidable forensic obstacle to anybody who challenges the validity of a will on that ground.

132. On the evidence presently available to the Court, the defendant’s prospective “undue influence” challenge has no reasonable prospects of success as a “stand alone” challenge to either of the wills presently under consideration.

133. Nevertheless, the defendant suspects that he was displaced in wills of the deceased by conduct of the plaintiff unfairly influencing the deceased to change her wills in his favour, at the same time conducting her affairs, and engaging with her, in his own interests (in a manner facilitated by his holding an enduring power of attorney, details relating to the preparation and execution of which are not in evidence before the Court) and isolating her from the defendant.

134. In my opinion, he should be allowed a reasonable opportunity to investigate this, at least to the extent of disclosure of information peculiarly within the knowledge of the plaintiff or his solicitors.

135. That the plaintiff acted as an attorney ostensibly on behalf of the deceased is a fact in evidence (without factual detail), because (relying upon a Power of Attorney registered as Book 4719 No 879) he executed a registered mortgage (dealing AM186346) over her home to secure a loan of $255,500 at some time in 2016, but there is no evidence presently before the Court that he did so otherwise than in the interests, and for the benefit, of the deceased.

136. Whether Mario Marando was involved in the preparation and execution of an enduring power of attorney in favour of the plaintiff is not presently the subject of evidence before the Court.

137. Whether the deceased ever executed more than one enduring power of attorney, an enduring guardianship appointment or any other documents referable to estate planning is not the subject of evidence before the Court.

138. How far back from the deceased’s admission to a nursing home in 2016 the plaintiff managed her affairs (or was influential in her management of her own affairs) is not known. That said, an inquiring but not overly suspicious mind might discern a close relationship between the deceased and the plaintiff as her only surviving child, going back to the death of her only other child (the mother of the defendant) in traumatic circumstances or the subdivision of her residential property to accommodate the plaintiff and his family as next door neighbours.

“Probate Fraud”?

139. The defendant’s suspicion that he was displaced in wills of the deceased by conduct of the plaintiff unfairly influencing the deceased to change her wills in his favour, coupled with imprecision in the articulation of an “undue influence” case, requires an appreciation of the distinct concept of “fraud” as a ground for challenging the validity of a will.

140. Upon an exercise of probate jurisdiction the word “fraud” is a label different in nature and scope from “common law fraud”. The execution of a will might be procured by conduct that is misleading or deceptive, although, not consciously dishonest.

141. Whether the defendant can bring his case within the purview of “probate fraud” is, at best, doubtful on the present state of the evidence; but he should have an opportunity (no more than may be reasonable) to reflect on that possibility with the benefit of information peculiarly within the knowledge of the plaintiff or his solicitors.

142. Although there is presently no allegation in these proceedings that the deceased’s execution of a will or codicil was procured by fraud, recognition of the field of operation of “fraud” in probate proceedings is important to distinguish the concept from the concepts of “undue influence” upon an exercise of probate or equity jurisdiction.

143. That can be done conveniently by noting the observations of the Court of Appeal in Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 at [61]- [69]:

“[61] It is important, however, to appreciate that undue influence and fraud are two fundamentally different concepts.

[62] Before identifying the principal difference, I would note that the equitable doctrine of undue influence does not apply to testamentary gifts: Boyce v Rossborough; Craig v Lamoureux [1920] AC 349; Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116. Importantly, probate undue influence differs from the equitable doctrine of undue influence under which the donor may fully intend and desire the transaction even though an inference of undue influence may arise: Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457 at 475 per Gaudron, Gummow and Kirby JJ.

[63] Undue influence, in a probate context, is constituted by conduct that overbears the will of the testatrix so that she makes the will without intending and desiring the disposition made thereby. The circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix. The volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will. The point was put succinctly in Wingrove v Wingrove [1885] UKLawRpPro 46; (1885) 11 PD 81 by Hannen P (at 82):

“[i]t is only when the will of a person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence”.

See also Hall v Hall (1868) LR 1 P & D 481 where Sir J P Wilde, at 482, described undue influence as the overpowering of the volition without convincing the judgment.

[64] The basic point is that, to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition. It must be shown that she has been coerced into making it. See, generally, Boyse v Rossborough; Buckley v Maddocks [1891] NSWLawRp 72; (1891) 12 LR (NSW) Eq 277 at 282 per Stephen J; Winter v Crichton; Estate of Galieh.

[65] On the other hand, fraud, sufficient to result in the invalidation of a testamentary instrument, is concerned with misleading or deceptive conduct. With fraud, there is no overpowering of the volition, no coercion. Whereas undue influence coerces a testatrix, fraud misleads her.

[66] Fraud embraces a wide category of conduct affecting testamentary disposition. Relevantly, as regards the present case, in The Public Trustee v Mullane (Unreported, Supreme Court of New South Wales, 12 June 1992), Powell J (at 15) gave the following example of fraud capable of invalidating a will:

“wilfully false statements, or the suppression of material facts, intended, either, to gain for oneself benefits under a will, or to prevent benefits being received by a natural object of the testator’s bounty.”

[67] In White v White & Cato (1862) 2 Sw & Tr 504, Sir Cresswell Cresswell distinguished between undue influence and fraud. He observed that there had been a plea of undue influence in the case but no clear plea of fraud. He is reported, at 506, as having said to counsel:

“If you intend to charge the plaintiff with having obtained the execution of this will by instilling into the mind of the deceased false and delusive notions respecting the conduct of the defendant, this is tantamount to a charge of fraud, and you should have placed on the record a plea charging her with having obtained it by fraud.”

[68] In Riding v Hawkins [1889] UKLawRpPro 10; (1889) 14 PD 56, the court distinguished between undue influence and fraud and required fraud to be separately pleaded.

[69] There are suggestions in In the Estate of Fuld (at 672) and Re Stott [1980] 1 All ER 259 that it may not be necessary to make positive allegations of fraud in probate cases. I disagree with that approach. It is contrary to the modern notion of justice as well as the surprise rule. Consistent with the modern attitude to allegations of fraud, generally, in probate actions fraud must be explicitly pleaded.”

Testamentary Capacity?

144. The P****resent State of the Evidence. On the question of evidence bearing upon the deceased’s capacity at the time she executed the 2014 will, the documentary evidence presently available to the defendant is thin, but suggestive of cognitive decline, possibly as far back (at least) as 2009.

145. The Death Certificate of the deceased (for which the plaintiff was the “Informant” and a Dr Susan Harnett was the “Certifying Medical Practitioner”) records the following information against the entry, “Medical (Cause of Death and Duration of last illness)”:

(a) End stage dementia, 10 years; (b) Diabetes; Hypertension, 24 years.

146. In response to written requests made by the solicitor for the defendant, the Facility Manager of the deceased’s Aged Care Facility voluntarily provided information (via emails dated 26 August 2025) to the effect that the deceased stayed at the Facility from 3 November 2016 until 5 January 2025; the Facility holds “a very large amount” of documentation relating to her residence and care at the Facility; the deceased was admitted to the Facility as a “high care resident”, with “Dementia in Alzheimer’s disease”; and that she had been the subject of a “Comprehensive Assessment” from an ACAT team at the time of her admission to the Facility.

147. A Diversion: An **“**Evidentiary Objection”. The plaintiff contends that the solicitor for the defendant acted improperly in soliciting information of this nature after I had, at a directions hearing, declined an application then made on behalf of the defendant to issue subpoenas for the production of documents addressed, inter alia, to the deceased’s nursing home.

148. That application was refused essentially because it was premature. I was concerned to obtain disclosure by the defendant of the best case he was able to advance on the evidence then available to him. In refusing leave to issue subpoenas at that time I made no orders precluding him from making his own inquiries of institutions with which the deceased was associated. Whether or not any institution felt able, and was willing, to provide such information was a matter for the institution concerned.

149. The plaintiff’s contention goes beyond criticism of the solicitor for the defendant as appears from paragraph [7] of written submissions of counsel for the plaintiff dated 28 August 2025 (with editorial adaptation):

“Notably, the documents attached to [an affidavit of the defendant’s solicitor] include personal health information. Section 138 of the Evidence Act [1995 NSW] provides that legally and improperly obtained evidence and should be excluded unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. A person’s health information must not be disclosed except with the person’s consent - see Health Records and Information Privacy Act 2002 (NSW) especially Schedule 1, section 11, Limits on Disclosure of Health Information, so it was illegal for the nursing home to disclose the information to the caveator. Notably, the information was obtained in circumstances where the caveator’s counsel had expressly asked for leave to issue subpoena to the nursing home and hospital to obtain this information, and the court expressly said that the court would not grant leave to issue the subpoena.”

150. This submission was made in support of a contention that the Court should be satisfied that there is no evidence that shows there is a doubt as to whether the will propounded by the plaintiff should be admitted to probate.

151. In strict procedural terms, no objection was taken to the admissibility of evidence requiring that a ruling on evidence be made. The plaintiff did not submit that any of the “evidence” tendered by the defendant could not be taken into account for the purpose of a determination under rule 71(4) of the Probate Rules. Nor did the plaintiff contend that documentary material relied upon by the defendant intrinsically lacks probative value. The plaintiff’s principal point was that the facts of which it may be evidence were remote in time from the dates of the deceased’s wills and the evidence was therefore fundamentally irrelevant.

152. So far as is material, section 138(1) and (3) of the Evidence Act 1995 is in the following terms:

“138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained—

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

…

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account—

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Note—

The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth.”

153. I am not persuaded that, in the context of the present proceedings, section 138 of the Evidence Act has any material application to the concept of “the evidence” within the meaning of rule 71(4) of the Probate Rules. Before I address that question, it is necessary to notice legislation bearing upon the question.

154. Upon a proper construction of the Evidence Act and the Probate Rules, reference must be made to the Interpretation Act 1987 NSW, section 33:

“33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

155. The expression “statutory rule” means, inter alia, “a rule of court”: Interpretation Act 1987, section 3(3) and Schedule 4.

156. The Evidence Act 1995 applies to “all proceedings” in the Court, including “interlocutory proceedings or proceedings of a similar kind”: section 4(1)(b).

157. Section 8 of the Evidence Act provides that the Act “does not affect the operation of the provisions of any other Act”.

158. So far as is material, section 9 of the Evidence Act is in the following terms:

“9 Application of common law and equity

(1) This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.

(2) Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following—

(a) …

(b) the operation of a legal or evidential presumption that is not inconsistent with this Act,

(c) a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.”

159. Although a study of Anglo-Australian legal history teaches that the probate jurisdiction of the Court originated in the Ecclesiastical jurisdiction of English church courts rather than a court of equity associated with the Lord Chancellor of England, I take the reference in section 9(1) of the Evidence Act to “the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which” the Act applies as intended to refer to the general “judge made” law administered by the Court whatever its historical origins. Cf, Mark Leeming, Common Law, Equity and Statute*:* A Complex Entangled System (Federation Press, Sydney, 2023), section [2.7].

160. Section 9(2)(c) of the Evidence Act needs to be read with section 11 of the Evidence Act and sections 14 and 16 of the Civil Procedure Act 2005 NSW.

161. Section 11 of the Evidence Act is in the following terms:

“11 General powers of a court

(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.

(2) In particular, the powers of a court with respect to abuse of process in a proceeding are not affected.”

162. Sections 14 and 16 of the Civil Procedure Act 2005 are in the following terms:

“14 Court may dispense with rules in particular cases

In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.

…

16 Court may give directions in circumstances not covered by rules

(1) In relation to particular civil proceedings, the court may give directions with respect to any aspect of practice or procedure for which rules of court or practice notes do not provide.

(2) Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done.”

163. For completeness, it might be noted that section 5 of the Civil Procedure Act provides that nothing in that Act or the Uniform Civil Procedure Rules 2005 NSW limits the jurisdiction of the Court and nothing in those rules extends the jurisdiction of any Court except to the extent to which the Civil Procedure Act expressly so provides.

164. Section 138 of the Evidence Act is implicitly speaks principally to adversarial proceedings in which evidence is “admissible” or not according to whether it bears upon “the probability of the existence of a fact in issue” in contested proceedings, not inquisitorial proceedings of the nature of those contemplated by rule 71(4) of the Probate Rules.

165. The concept of “a fact in issue” is embedded in section 138(3)(a) of the Evidence Act by the definition of “probative value” in the Dictionary of the Act. It provides that “probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.

166. The concept of “a fact in issue” is also prominent in the general provisions of Part 3.1 (sections 55-58) of the Evidence Act (with emphasis added):

“Part 3.1 Relevance

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to—

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

(c) a failure to adduce evidence.

56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.

57 Provisional relevance

(1) If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant—

(a) if it is reasonably open to make that finding, or

(b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.

(2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed.

58 Inferences as to relevance

(1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.

(2) Subsection (1) does not limit the matters from which inferences may properly be drawn.”

167. A simple answer to the plaintiff’s “evidentiary objection” may be that (upon an assumption that the Health Records and Information Privacy Act 2002 NSW was contravened (or that some impropriety otherwise attached to the conduct of the defendant) “the desirability of admitting the evidence” outweighs “the desirability” of not admitting the evidence the subject of the plaintiff’s objection.

168. A further simple answer to the objection may be that, if the defendant is allowed to contest the validity of (at least) the deceased’s 2014 will, the likelihood is that he would in due course and in the ordinary course be permitted to subpoena the nursing home for production of the documentation the subject of the plaintiff’s objection.

169. That said, the plaintiff’s submissions call for close attention to the proper construction of rule 71(4) of the Probate Rules (particularly the proper construction of the word “evidence”) and the purpose of a determination that a probate caveat cease to be in force.

170. Although the filing of a “probate caveat” does not, strictly, constitute the commencement of probate proceedings, it may be accepted that an application that a probate caveat cease to be in force engages the concept of an “interlocutory proceeding or a proceeding of a similar kind” within the meaning of the Evidence Act*,* section 4(1)(b).

171. Still, nothing in the Evidence Act or the Civil Procedure Act operates, expressly or by implication, to limit the “evidence” open to the Court’s consideration in making a determination under the Probate Rules, rule 71(4).

172. Were it otherwise, the purpose for which the Court’s probate jurisdiction exists might be frustrated. The fact that the central personality in probate proceedings (a deceased person) is not a party to proceedings critically concerned with his or her affairs lies at the heart of the public interest character of probate proceedings, and distinguishes them from adversarial proceedings between competent parties present and able to manage their own affairs.

173. A contested probate suit focusing on the validity or otherwise of a testamentary instrument may lend itself to characterisation as an adversarial proceeding without necessarily displacing the inquisitorial, public interest features of an exercise of probate jurisdiction. However, the terms in which rule 71(4) of the Probate Rules are expressed are consistent with the view that proceedings on an application for an order that a probate caveat cease to be in force essentially engages the Court’s inquisitorial case management functions rather than simply providing an occasion for an adversarial contest.

174. In my opinion, on its proper construction the word “evidence” in the Probate Rules, rule 71(4) means “available information” bearing upon whether “there is a doubt as to whether [a] grant of probate or administration should be made”. That information may, or may not, take the form of evidence admissible at a contested hearing for a grant of probate or administration.

175. Although a caveator may bear a forensic onus to persuade the Court, by reference to the criteria in subparagraphs (a) and (b) of rule 74(1), to exercise the discretion implicit in the word “may” to decline to order that a caveat cease to be in force, there is nothing in the rule that precludes a caveator inviting the Court to make “case management” orders for the investigation of facts bearing upon the validity of a will before making a determination whether (and, if so, on what terms) a challenge to a will can be maintained.

176. An ACAT Assessment. A copy of an ACAT assessment dated 2 November 2016 provided to the solicitor for the defendant by the deceased’s Aged Care Facility records that participants in the assessment included the plaintiff and his wife, who are recorded as having wanted to be the first and second points of contact for the deceased respectively.

177. It also records that the deceased had approval for “residential permanent” care of a type described as “residential respite high care”. The plaintiff is recorded as being “very concerned about [the deceased’s] deteriorating physical + cognitive health” in circumstances in which she had recently been discharged from hospital, had experienced falls and a change in cognitive status, and there were “carer burden/issues”.

178. Under a heading entitled “Carer Overview - Carer Perspective” and in answer to the question “What type of care do you provide? How often?” the response recorded is “Help with shopping, finances, housework, transport + meal preparation”.

179. Her community based activities and interests were described as being “limited to the home and club alone”.

180. Although she lived alone in her house she lived next door to her son (the plaintiff) and daughter-in-law who are recorded as having had “regular contact” with her “sometimes 5-6 times daily”.

181. The ACAT report records, under the heading “Medical Domain”, that the deceased’s “health concerns impacting independence” comprised “cognition, self-neglect, alcohol intake”. She was recorded as having “dementia in Alzheimer’s disease, a typical or mixed type”, coupled with hypertension (high blood pressure), but she was nevertheless “mobile and talkative”.

182. She was recorded as then receiving clinical services from “hospital rehab”, which I infer refers to Bankstown Hospital. Her “relevant medical history” is recorded as being “HTN [which I infer to be a reference to hypertension], depression, falls, shingles, urinary incontinence, falls, alcoholism”.

183. The plaintiff is recorded as being “very concerned that [the deceased] drinks when depressed and often hides alcohol/wine from him”. He is also recorded as having helped her in relation to travelling, shopping, cooking, medicine, bathing, dressing and finances. She is recorded as having been “completely unable to do any shopping” and “completely unable to handle money”.

184. Under the heading “Psychological domain” the ACAT report records that the plaintiff had noticed a change in the deceased’s memory and thinking “especially in last three months eg STMI/Confusion” and that the time frame over which those changes had been experienced was “approximately the last five years”, noting that the deceased was not “aware of time and place” and that there had been changes in her personality as she had become “more and more depressed + agitated also at times”. She is recorded to have experienced “memory problems” or “confusion” and to have demonstrated “behavioural problems” particularised as “difficult to reason with + verbal aggression”.

185. In answer to the question “Are there any concerns regarding [the deceased’s] decision-making capabilities?” the ACAT report records: “Yes (minor impairment/requires occasional supervision or assistance through to severe impairment)”. She is said to have forgotten things “very often” and to have suffered “memory loss”. She is said to have been “nervous” most of the time, “depressed” some of the time” and lonely “most of the time”.

186. She is recorded to have been “socially isolated” living “next door to son”. “[A] bit socially isolated as her daughter and her friends passed away. She also feels lonely. She feels very depressed”. She is recorded to have “short term memory problems” always and “long term memory problems” regularly, with “impaired judgement” always. She is said to have been managing at home, “dependent on family for help”.

187. The ACAT report records that the deceased belonged to “risk of vulnerability cohort[s]” described as a “culturally and linguistically or ethnically diverse individual” and “socially isolated individual”.

188. She is recorded by the ACAT report to have had “complex issues” including “health conditions, significant psycho social concerns, memory problems/confusion, behavioural concerns, falls, change to personality/behaviour, continence issues, sleep difficulties, and health literacy”.

189. The upshot of the ACAT report is that in November 2016 the deceased was plainly a vulnerable person with issues possibly going back five years in an indeterminate way but involving a deterioration in cognition shortly before the time of the ACAT assessment.

CONSIDERATION

Estrangement or Isolation?

190. The plaintiff contends that, after the death of his mother, the defendant had little contact with the deceased and that he was estranged from her.

191. That is not the defendant’s evidence, on the contrary. His evidence is that he was always close to his grandmother, particularly after the death of his mother (her only daughter) but that the plaintiff monopolised care of the deceased and isolated her from him. That evidence is corroborated by evidence of his father.

192. Whether the deceased regarded herself as estranged from the defendant and, if so, whether the plaintiff contributed to that state of mind are questions which cannot be answered at this stage of these proceedings.

The Defendant’s Forensic Dilemma

193. At this stage, without an opportunity to call upon the Court’s disclosure procedures in aid of his investigations the plaintiff’s suspicions are largely just that, although perhaps soundly based on an understanding of family relationships and statements of the deceased.

194. Although a caveator generally bears a forensic burden to place before the Court evidence that allows the Court to form the view that the evidence shows that “there is a doubt as to whether [a] grant of probate or administration should be made”, rule 71(4) of the Probate Rules does not, in terms, speak in terms of any form of onus.

195. It certainly does not, as contemplated by Azzopardi v Smart (1992) 27 NSWLR 232, require a caveator to prove a “prim**a facie case” of the invalidity of a will, or something akin to that, without reasonable resort to disclosure orders routinely made in probate proceedings.

196. Leaving aside broader contextual facts about family relationships and statements attributed to the deceased, there are three features of the present proceedings that incline me to the view that, even on the state of the evidence as presently available, “there is a doubt as to whether a grant of probate should be made at least in respect of the 2014 will”.

197. First, there is doubt in my mind as to whether the deceased truly “knew and approved” the term of either the 2014 or the 2012 will having regard to the infelicity of the provisos to the gifts made in those wills.

198. Secondly, although the solicitor for the plaintiff (and possibly the plaintiff himself) has actual knowledge of the circumstances in which each of the 2014 and 2012 wills was prepared and executed, written requests made by the solicitor for the defendant for information about the deceased’s estate and testamentary instruments, no such information was provided beyond reluctant provision of a copy of each of the 2014 and 2012 wills.

199. Thirdly, the plaintiff’s application for an order that the defendant’s caveat cease to be in force, and his strident opposition to the defendant being allowed any latitude in investigation of the deceased’s affairs, of themselves create suspicion on the part of the Court that the plaintiff may have something to hide, to put the point colloquially (but perhaps too strongly).

200. There is no suggestion in these proceedings that some form of privilege attaches to evidence about the circumstances in which the 2014 and 2012 wills were executed. Nor could there be in light of the principles flowing from In the Estate of Fuld, Deceased; Hartley v Fuld (Attorney-General Intervening) [1965] P 405 at 409-411 which establish that, because of the public interest in an orderly succession to property, a witness of the circumstances in which a will was executed may be regarded as a witness of the Court, rather than of a party. See Re Estate Pierobon, deceased [2014] NSWSC 387; Boyce v Bunce [2015] NSWSC 1924 at [145] et seq; and Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [60](f) and [89]-[90].

201. In the present proceedings, the solicitor for the defendant made written requests for information from the solicitor for the plaintiff which might be characterised as Larke v Nugus letters by reference to a judgment of the English Court of Appeal in Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033, extracted in Re Estates Brooker-Pain and Soulos at [83]:

“The Court of Appeal (constituted by Buckley, Shaw and Brandon LJJ), in a judgment delivered on 21 February 1979 but only reported in 2000, made the following observations (with editorial adaptation):

“[In principle] when there is litigation about a will, every effort should be made by the executors to avoid costly litigation if that can be avoided and, when there are circumstances of suspicion attending the execution and making of a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will as to how the will came to be made. In a case of this kind, where suspicion attaches to the will because certain persons, who have only recently come into the life of the testatrix, take a substantial benefit under the will, then clearly the circumstances in which instructions for the will were given are of the utmost importance, and it is information as to that matter, even more than information as to the formalities of attestation, that is needed. [Per Brandon LJ at [2000] WTLR 1044 D-F] …”

202. The sentiments there expressed are commended even though in Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [87] I expressed reservations about the practical application of the Court of Appeal’s statement of principle.

203. A consideration of Larke v Nugus gave rise to the concept of a “disclosure affidavit” as an ordinary case management order at an early stage of probate proceedings.

CONCLUSION

204. I am satisfied, by reference to rule 71(4) of the Probate Rules, that the evidence shows that there is a doubt as to whether a grant of probate or administration should be made in respect of each of the wills of the deceased dated 10 July 2014 and 3 February 2012.

205. I am satisfied that the plaintiff’s notice of motion filed on 16 July 2025 seeking an order that the defendant’s caveat cease to be in force should be dismissed and that the plaintiff’s application for a grant of probate should proceed on pleadings as a contested suit.

206. The form of the wills, in the context of the deceased’s family relationships, of itself raises a doubt about whether she knew and approved the terms of the wills. The plaintiff bears the onus of persuading the Court at a final hearing that she did. His forensic decision to restrict the information available to the defendant at this stage of the proceedings does nothing to dispel any doubt, attending the form of the wills.

207. Although I do not regard it as necessary for the defendant to have the benefit of the Court’s case management disclosure orders before my determination that the plaintiff be required to file a statement of claim, I am satisfied that the defendant should have the benefit of those orders (not extending to subpoenas for the production of documents directed to third parties such as doctors, hospitals or the like) before he is required to file a defence and any cross claim he may be advised to file.

208. Subject to allowing the parties an opportunity to be heard about the form of orders and costs, I propose to make orders to the following effect:

209. ORDER that the plaintiff’s notice of motion filed on 16 July 2025 be dismissed.

210. ORDER that the plaintiff file and serve no later than [a date to be specified] a verified statement of claim.

211. ORDER that the parties’ costs of the notice of motion be their costs in the proceedings.

212. ORDER that the plaintiff file and serve no later than [a specified date] a verified disclosure statement.

213. ORDER that each of the plaintiff and his solicitor (Mario Marando) file and serve no later than [a specified date] an affidavit or affidavits, deposing (to the best of his knowledge, information and belief) to the circumstances in which each of the 2014 and 2012 wills of the deceased was prepared and executed.

214. ORDER that each of the plaintiff and his solicitor produce to the Court a copy of any instrument within his possession, custody or control being, or purporting to be, a will, codicil or other form of testamentary instrument executed by or on behalf of:

(a) the deceased (Vera Barzacca); (b) the husband of the deceased (Fiorino Barzacca); or (c) the daughter of the deceased (Giuliana Saliba).

7. ORDER that each of the plaintiff and his solicitor produce to the Court a copy of any grant of probate or administration within his possession, custody or control being a grant of representation in relation to the deceased estate of:

(a) the deceased (Vera Barzacca); (b) the husband of the deceased (Fiorino Barzacca); or (c) the daughter of the deceased (Giuliana Saliba).

8. ORDER that each of the plaintiff and his solicitor produce to the Court a copy of any instrument within his possession, custody or control being:

(a) a will, codicil or other form of testamentary instrument executed by or on behalf of the plaintiff; (b) an agreement between the plaintiff and the deceased relating to the subdivision of the properties now known as 116-118 Hunter Street, Condell Park; (c) an agreement between the plaintiff and the deceased regarding the plaintiff’s purchase from the deceased of the premises known as 118 Hunter Street, Condell Park; or (d) an instrument being, or purporting to be, a power of attorney or a guardianship appointment (including, but not limited to the power of attorney registered as Book 4719 No 879) executed, or purportedly executed, by the deceased.

9. ORDER that the solicitor for the plaintiff produce to the Court, no later than the date upon which he files and serves a discovery affidavit pursuant to these orders, his firm’s file relating to the preparation of any will prepared on behalf of the deceased, her husband or her daughter (together with any bill of costs rendered for work undertaken in the preparation of a will and both the “office” and “trust” ledger accounts relating to each file).

10. My present inclination is to defer until after the defendant files a defence, and any cross-claim, the question whether (and, if so, when) subpoenas addressed to third parties should be permitted.

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Addendum to Judgment published as [2025] NSWSC 1252

1. On 31 October 2025 Lindsay J made orders substantially in the form of the orders foreshadowed in paragraph 207 of the reasons for judgment published as [2025] NSWSC 1252, subject to these qualifications.
2. Counsel for the plaintiff informed the Court that, although each of the wills of the deceased dated 3 February 2012 and 10 July 2014 was prepared in the office of Marando Solicitors (presently the solicitors on the record for the plaintiff), the solicitor with carriage of the preparation and execution of those wills was Mark Marando (not Mario Marando, presently the principal of Marando Solicitors) and Mark Marando’s association with the firm ceased in 2015.
3. The suite of orders made included orders for the filing and service of a discovery affidavit of Mark Marando.
4. The orders made also included a reservation of the question whether any (and, if so, what) orders should be made by reference to the “Protocol relating to costs and costs capping in probate proceedings” dated 21 July 2025.
5. Counsel for the defendant informed the Court that his inquiries suggest the possibility that the daughter of the deceased (Giuliana Saliba) died intestate.
6. Orders having been made giving effect to the reasons for judgment, the proceedings were next listed for directions before the Probate List Judge (Lindsay J) on 12 December 2025.

Amendments

31 October 2025

At [118] typographical correction At [127] typographical correction Addendum added

31 October 2025

[2] of the Addendum - the word "having" was removed