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[2025] NSWSC 1290
General information, not legal advice.
Supreme Court of NSW
2025-11-03
Lindsay J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Re Estate Lygdas [2025] NSWSC 1290
Hearing dates: 8, 20 and 29 August 2025, with written submissions
Decision date: 03 November 2025
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision: Subject to allowing the parties an opportunity to make submissions about the form of orders, costs and directions for further conduct of the proceedings:
Catchwords: PROBATE – Practice and procedure – Uncontested application for probate – Consideration of application not deferred pending determination of claim that estate property held on trust outside the will
SUCCESSION – Costs – Consequences of abandonment of several claims for relief including, but not limited to abandonment of opposition to grant of probate
Legislation Cited: Succession Act 2006 NSW
Uniform Civil Procedure Rules 2025
Cases Cited: Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786
Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Category: Procedural rulings
Parties: Plaintiff: Areti Lygdas
Defendant: Geoffrey Dennis Walker
Representation: Counsel:
Plaintiff: Daniel Yazdani
Defendant: Angela Djukanovic
Solicitors:
Plaintiff: Calabrese Lawyers
Defendant: Higgins Lawyers
File Number(s): 2023/00421297
These proceedings concern the estate of Daphne Lygdas (“the deceased”) who died by suicide on 26 March 2023, leaving a will dated 27 May 2021 which named the defendant (who claims to have been the deceased’s long-term partner) as sole executor and beneficiary.
The main asset of the estate is a residential property comprising a strata unit in Lakemba.
There is a history of acrimony between the plaintiff (the mother of the deceased) and the defendant.
The validity of the deceased’s will was in issue at the time of commencement of these proceedings, but is no longer disputed by the plaintiff. The plaintiff’s abandonment of substantially the whole of the case for which she contended at the commencement of the proceedings, and her progressive assertion of a new case over successive amendments of her statement of claim, necessitates a review of the course of the proceedings to date, and a reassessment of how best to proceed.
When she commenced the proceedings the plaintiff claimed that the deceased died intestate; denied that the defendant was in a domestic relationship which would entitle him to inherit the deceased’s estate on intestacy; and claimed that, on an intestacy, she was entitled to the whole of the deceased’s estate under Chapter 4 of the Succession Act 2006 NSW or, alternatively, the benefit of a family provision order under Chapter 3 of the Succession Act 2006. Each of those claims has been abandoned. The plaintiff seeks now only to claim an equitable interest in the Lakemba unit arising from “contributions” made to the deceased.
No document other than the will dated 27 May 2021 purporting to embody the testamentary intentions of the deceased is known to be in existence.
On 10 July 2023 the defendant filed a summons for probate in proceedings numbered 2023/00191658.
On 14 September 2023 the plaintiff filed a caveat (bearing case number 2023/00191658) against a grant of probate being made in relation to the deceased’s estate.
By a statement of claim filed on 20 November 2023 (in these proceedings numbered 2023/00421297) the plaintiff sought a declaration that the deceased died intestate; a declaration that the defendant was not a party to a domestic relationship with the deceased for a continuous period of two years immediately before her death; orders for a grant of letters of administration to her; and, alternatively, a family provision order under Chapter 3 of the Succession Act 2006 NSW.
On 21 December 2023 the defendant filed a statement of cross claim in which, in substance, he sought a declaration that he was in a de facto relationship with the deceased at the date of her death and an order that he be granted probate of her will in solemn form. The declaration would only be necessary if the deceased’s will was invalid and she died intestate. On 2 January 2024 the defendant filed a defence which joined issue with the plaintiff on her statement of claim.
In February 2024 each party filed and served a “disclosure statement” of the type described in paragraph 19 of Practice Note SC Eq 7. The plaintiff’s statement was filed on 16 February 2024. The defendant’s statement was filed on 12 February 2024. As disclosed in those statements, the deceased’s estate (comprising the Lakemba unit and superannuation entitlements) has an estimated value of about $500,000.
On or about 12 March 2024 the plaintiff filed an amended statement of claim in which she abandoned her family provision claim and added a claim that the deceased’s estate holds the Lakemba unit on a resulting trust for her (and is liable, by reason of that trust, to transfer the property to her or to pay equitable compensation). She maintained her allegations that the deceased died intestate and that the defendant had not been in a domestic relationship with the deceased.
On 4 April 2024 the defendant filed a defence to the plaintiff’s amended statement of claim in which he joined issue with the plaintiff and reiterated that the deceased had testamentary capacity at the time she executed her will. He also filed on 4 April 2024 an amended statement of cross claim with particulars of his case that had testamentary capacity.
On 28 May 2024 the defendant filed his substantive affidavit in the principal proceedings. On 29 May 2024 the plaintiff filed her substantive affidavit in the principal proceedings.
On 26 June 2024 the parties participated in a court annexed mediation without a settlement.
On 17 September 2024 at a directions hearing before the Probate Registrar, the plaintiff sought leave to amend her pleadings as well as leave to issue 11 subpoenas for the production of documents.
Over the defendant’s objection, the Registrar granted the plaintiff leave to amend her statement of claim and to issue two of the proposed subpoenas.
By a “further amended statement of claim” filed on 24 September 2024 the plaintiff abandoned her allegation of a “resulting trust” and asserted a claim of a general trust, based upon her contributions to the property, claiming an order that the property be transferred to her, or that the estate of the deceased account to her for her financial contributions, “in such proportions as reflect [her] equitable interest in the property”, or “equitable damages and/or compensation”.
She maintained her allegations that the deceased died intestate, that the defendant had not been in a domestic relationship with the deceased, and that a grant of letters of administration of the deceased’s estate should be made to her. She also maintained her abandonment of her family provision claim.
On 8 October 2024 the defendant filed a defence to the “further amended statement of claim” joining issue with that pleading.
On 17 December 2024 the plaintiff renewed her application to the Probate Registrar for leave to issue nine subpoenas for production of documents in respect of which leave had earlier been denied. Two of those subpoenas were respectively addressed to the NSW Police Force and the Commonwealth Bank of Australia. Five were addressed to hospitals. The remaining two were addressed to medical practitioners.
At that directions hearing, the Probate Registrar reserved the question of costs of the subpoenas and granted leave to the plaintiff to adduce expert evidence in relation to the question of testamentary capacity.
On 20 February 2025 a Senior Deputy Registrar made orders for general access to documents then produced on subpoena.
On 13 March 2025 Slattery J made orders for the appointment of a single court-appointed expert under rule 31.46 of the Uniform Civil Procedure Rules 2025 NSW, with a direction that the parties agree on joint instructions to the expert.
At the same time, on notice to the parties, Slattery J made cost capping orders pursuant to the Uniform Civil Procedure Rules 2025, rule 42.4.
Subsequent directions hearings before the Probate Registrar were adjourned by agreement (on 17 June 2025 and 15 July 2025) without steps being taken to retain the services of the nominated expert.
At a directions hearing on 5 August 2025 before the Probate Registrar the plaintiff sought leave to amend her further amended statement of claim**,** without proffering a draft amendment, but announcing that she abandoned her “probate claims” and sought only to press her “trust claim”.
From that directions hearing the proceedings first came before me on 8 August 2025, with the benefit of written submissions (both dated 6 August 2025) from each party.
On that occasion, counsel for the plaintiff confirmed that the plaintiff no longer presses her claim to “probate relief”, but wishes to continue her claim for equitable relief.
The plaintiff contends that, notwithstanding abandonment of her claims that the deceased died intestate and that the defendant was not a party to a domestic partnership with the defendant (thereby dispensing with any need for a joint report on the question of the deceased’s capacity), the Court should reserve to the judge who determines her “equity claim” the question whether the deceased’s Will “should” be admitted to probate.
That approach was based upon the following propositions:
“… [Even] though the plaintiff is not pressing the probate relief, the Court must still be satisfied that it is appropriate to make such a grant, it not being a consent jurisdiction. Due to a grant of probate being a public act, the Court will not make orders merely because a party or parties asked for them: I**n the Goods of Watts (1837) 1 Curt 594; 163 ER 208; Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [271]; Cassarino v Cassarino [2020] NSWSC 454 at [16] …
Three procedural questions that potentially arise as a result of the plaintiff no longer pressing the probate relief are:
(a) whether the probate relief originally sought in the Further Amended Statement of Claim (but is no longer pressed) should be determined separately and prior to the determination of the plaintiff’s claim for equitable relief; or (b) whether in light of:
(i) the nature of the plaintiff’s equitable claim (the effect of which is that, if she is successful, the main asset of the estate will be held on trust for the plaintiff, thereby rendering any grant of probate of little utility); and (ii) the defendant’s Amended Statement of Cross Claim filed 4 April 2024 in which he is propounding the Will,
the question as to whether probate of the Will should be granted should be determined by the trial judge at any final hearing; and
(c) what costs consequences flow from the further amendment of the plaintiff’s claim in deleting or not pressing those parts of the claim that concern probate relief.
The plaintiff says that it is appropriate that the question as to the final probate relief (ie, determination of the defendant’s cross-claim) be determined at the same time as the determination of the plaintiff’s equitable claim …”
The plaintiff’s submissions, if adopted, would deliberately leave open to her an opportunity at a final hearing of her equitable claims to seek to persuade the judge hearing those claims not to admit the deceased’s Will to probate because her (primary) submission is that the Lakemba unit is held by the deceased’s estate on trust for her.
The plaintiff’s submissions went further than that. They included the following propositions:
(a) if the Court is minded to issue a grant of probate of the Will prior to the final determination of the plaintiff’s claim, such an order will need to be subject to an order that the executor to whom probate is granted not deal or dispose with the estate pending determination of the plaintiff’s claim; (b) there is no urgency in any grant being issued at this time, as the main asset of the deceased (the Lakemba property) is presently locked and secured, orders having been made by Slattery J earlier in these proceedings preventing any party from entering or dealing with the property until further order; (c) there is a real argument to be had (which the plaintiff wishes to be heard further about) as to whether, notwithstanding she no longer presses the probate relief, the two “exceptions” to the general principle that costs follow the event (commonly identified by reference to Re Estate Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 709) would apply in these proceedings.
“Costs are, of course, in the discretion of the court, but that discretion, being a judicial, and not an unfettered, one must be exercised in accordance with established principle.
The general principle to be applied in adversary litigation is that costs follow the event, those costs being taxed on a party and party basis. However, over the years, a number of exceptions to this general rule have come to be recognised. In the field of probate litigation, two such exceptions have come to be recognised, they being:
- where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate;
- if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them: see, eg, Mitchell and Mitchell v Gard and Kingwell (1863) 3 Sw & Tr 278; 164 ER 1280; Orton v Smith (1873) LR 3 P&D 23; Wilson v Bassil [1903] P 239; Spiers v English [1907] P 122; Kenny v Wilson; In the Estate of Holtam; Gillett v Rogers (1913) 108 LT 732.
To these exceptions to the general principle should, perhaps, be added the principle that, although a legal personal representative may be entitled to recover from a party to litigation costs only on a party and party basis, he, as a fiduciary, retains the right to an indemnity from the estate, and, thus, may have recourse to the estate for any difference between his costs on a trustee basis and the costs recovered from a party.”
For her part, on 8 August 2025 the defendant sought, inter alia, a grant of probate of the deceased’s Will in circumstances in which there is now no active opposition to a grant.
This was resisted by the plaintiff for the reasons elaborated in her written submissions dated 6 August 2025, essentially seeking to obtain a forensic advantage in leaving to the final hearing the question whether the Will should be admitted to probate and deferring the question whether she should suffer any costs consequences arising from her conduct of the proceedings to date.
This impasse called for supplementary written submissions. In giving directions for those submissions I mentioned to the parties that, although not formally recorded in the Court’s “Record of Proceedings”, I reserved for consideration the question whether, if there were to be ongoing delay in these proceedings, with the Lakemba unit neither occupied nor tenanted, an interim administrator might be appointed (with power to lease the unit and raise funds on the security for the unit), coupled with an undertaking or injunction not to deal with the property without the consent of the parties or the leave of the Court, nevertheless contemplating the possibility that the property might be sold under the direction of the Court.
Procedural directions were given for the defendant to identify the evidence relied upon by him in support of a grant of probate, together with short written submissions.
Directions were also given for the plaintiff to file and serve any supplementary written submissions upon which she proposed to rely in relation to her abandonment of her claim for probate relief and questions as to costs arising from that abandonment.
Both parties were invited to make submissions about the subsisting costs capping orders in light of the course of the proceedings to date.
In her written submissions dated 18 August 2025 the plaintiff supplemented her written submissions dated 6 August 2025 and elaborated reasons why: (a) upon an assumption that the Re Estate Hodges exceptions to the general principle that cost follow the event govern the present case at the present time, she should be taken to have acted reasonably in her investigation of the validity of the deceased’s Will and entitled to her costs for having done so; and (b) the difficulties arising from any order that costs be paid out of the estate of the deceased pending a determination of her claim that the principal asset of the estate is held on trust for her. She contends, in summary, that costs associated with her probate case be “costs in the cause, or alternatively costs reserved”.
In his supplementary written submissions dated 15 and 26 August 2025 the defendant responded in terms to the plaintiff’s written submissions and identified evidence relied upon in support of a grant of probate.
Both parties invited the Court to revoke the costs capping orders made on 13 March 2025.
The evidence relied upon by the defendant in support of a grant of probate amply supported the particulars set out in the amended statement of cross claim he filed on 4 April 2024.
In summary, those particulars alleged (and the evidence establishes) that on 4 March 2021 the deceased and the defendant attended upon the office of the defendant’s present solicitors to give instructions to make mirror wills; that at the time of giving instructions to her solicitor on that date, the deceased informed the solicitor that she had suffered mental health issues; that the solicitor sought from the deceased a medical certificate from her treating psychiatrist confirming her capacity to make a will; and that a medical certificate dated 21 May 2021 (authored by the psychiatrist) confirming the deceased’s capacity to make a will was provided to the solicitor on 27 May 2021, the same date that the deceased executed her will.
There is evidence before the Court that supports that sequence of events and the facts particularised.
The solicitor who took instructions from the deceased prepared her will and supervised its execution. On 21 February 2024 he swore an affidavit deposing to the circumstances in which the deceased’s will was prepared and executed, and to his confidence that the deceased had capacity to provide meaningful instructions for the preparation of her will.
He also, incidentally, accepted responsibility for clerical errors apparent on the face of the will.
At the time the will was executed (together with an enduring power of attorney and an enduring guardianship appointment in favour of the defendant), he records in his affidavit, he was “of the opinion that there was no cognitive impairment to the documents being executed by [the deceased], and that she fully understood the import and effect of each of the three documents”.
On the evidence before the Court the will of the deceased dated 27 May 2021 is the last will of a free and capable testator. There is no persuasive reason against a grant of probate of the will being made in favour of the defendant without further delay. There are several good reasons for a grant being made without delay.
First, the deceased's estate needs to have a person authorised to administer it in order to prevent or minimise waste. The Lakemba unit is in need of management, and possibly sale, for the benefit of whoever might ultimately be found to be beneficially entitled to it.
Secondly, a grant of probate in favour of the defendant would confirm his role as the plaintiff’s contradictor.
Thirdly, confirmation of the defendant's legal title to the Lakemba unit (whether in a personal or representative capacity) provides an opportunity to extract from the plaintiff the usual undertaking as to damages as the price for her insistence that the property, or proceeds of sale of the property, be quarantined pending the determination of her equity claim.
Fourthly, a grant of probate in favour of the defendant would remove uncertainty otherwise attending a final hearing of these proceedings because of the plaintiff’s reservation of a perceived “right” to challenge a grant in the course of, or at the end of, the hearing of her equity claim.
Fifthly, having abandoned her challenge to the validity of the deceased's will, the plaintiff should not be permitted to maintain inconsistent positions affecting due administration of an estate in which (but for any equity entitlement she may have) she has no interest.
Sixthly, because the only persons interested in the outcome of these proceedings are the plaintiff and the defendant their competing claims about the costs consequences of the plaintiff’s abandonment of her “probate case” do not engage with the Re Estate Hodges exceptions in the same way that they might if a third party or parties had an interest in the estate. As a contest between the plaintiff and the defendant alone the character of the proceedings is more adversarial than inquisitorial.
Accordingly, I propose to make an order to the effect that a grant of probate of the deceased’s will be made to the defendant and that an instrument of grant issue forthwith.
I will entertain submissions, if any, about whether the will should be admitted to probate in solemn form rather than simply common form (a distinction discussed in Estate of Kouvakas*; Lucas v Konakas* [2014] NSWSC 786 at [218] et seq) but nothing of practical significance is likely to turn on characterisation of the form of the grant in circumstances in which the plaintiff is the only person known to have had an interest in opposing the grant.
The issue of a grant of probate to the defendant should, prima facie, carry with it revocation of the orders made preventing the defendant from taking control of the property pending the determination of these proceedings.
If, as I apprehend is likely, the plaintiff seeks an injunction, or an undertaking to the same effect as an injunction, restraining the defendant on an interlocutory basis from dealing with the property or the proceeds of sale, she should be required to proffer the usual undertaking as to damages as the price of constraining the defendant’s conduct.
In any event, the parties are invited to consider whether they may have a common interest in inviting the Court to make an order (under rule 27.1 of the Uniform Procedure Rules 2005 NSW or otherwise) for the property to be sold and for the proceeds of sale to be paid into court, or otherwise invested, pending further orders of the Court.
If such an order were to be made, I apprehend that the defendant would have carriage of the sale, on notice to the plaintiff, subject to the Court's directions.
The plaintiff should have an opportunity, on notice to the defendant, to bring forward the latest iteration of an amended statement of claim.
The defendant should have an opportunity to consider a draft of the proposed amended pleading before deciding whether he opposes a grant of leave to amend or seeks to have any grant of leave subject to conditions.
The question of whether the plaintiff should be granted leave to file an amended pleading should await the defendant’s consideration of a draft.
In light of the plaintiff’s abandonment of all claims for relief other than a “trust claim”, and my determination that a grant of probate of the deceased’s will should be made in favour of the defendant without further delay, the time is ripe for a determination of the costs consequences of the plaintiff’s conduct of the proceedings to date.
Had the plaintiff filed a notice of discontinuance in relation to the claims for relief she has abandoned she would, prima facie, have been required to pay the defendant’s costs of the claims for relief discontinued.
The claims for relief from time to time made by the plaintiff have never been confined to a challenge to the validity of the deceased’s will. They have included a claim to priority over the defendant on an intestacy, a family provision claim, and two iterations of a trust claim.
The plaintiff commenced these proceedings, and has maintained them, in a purely adversarial role, there being no person other than herself and the defendant with an interest in the outcome of the proceedings.
The two “exceptions” identified in Re Estate Hodges do not readily apply to this case.
As to the first “exception”, there is no basis upon which the deceased (or the defendant) could be said to have been a “cause of the litigation”. The deceased instructed a solicitor to prepare a will, prudently disclosed to him that she had a history of mental health problems, obtained a medical certificate from her treating psychiatrist confirming her capacity to make a will, and executed her will in the presence of the solicitor who drafted it. The will was duly executed and rational on its face.
The second “exception” is that on which the plaintiff principally relies (as she must) for an order that costs associated with her “probate case” be “costs in the cause, or alternatively costs reserved”.
The expression “costs in the cause”, if adopted, does not sit comfortably with a determination that a grant of probate be made in favour of the defendant without further delay (“the cause” having been determined) or with a deferral of costs questions pending the determination of the plaintiff’s “trust claim” (a distinctly different “cause” than the “probate claims” abandoned).
In filing her original statement of claim, the plaintiff sought to pre-empt the defendant in expressing her primary claim that the deceased died intestate and her subsidiary claim for family provision relief. As for an investigation, the course of the proceedings is consistent with prior knowledge that the deceased had suffered mental health issues and a determination to challenge the defendant’s status as the deceased’s de facto spouse come what may.
If, as the course of the proceedings suggests likely, any real prospects the plaintiff may have are focused on a trust claim, the necessity for any “investigation” bearing upon the validity of the deceased’s will is doubtful.
In my opinion, there is no proper basis upon which the defendant can be deprived of an order for costs in his favour and against the plaintiff personally.
The ordinary administration costs of obtaining a grant of probate should be borne by the estate on the indemnity basis.
However, the defendant’s costs of the proceedings to date (other than administration costs) should be paid by the plaintiff personally without recourse to the estate.
Prima facie, an assessment of those costs on the indemnity basis is appropriate because the plaintiff put the defendant to substantial cost and inconvenience in having to meet claims for relief which were recast and abandoned. I will allow the plaintiff an opportunity to contend for an assessment on the ordinary basis.
Upon an assumption that the plaintiff proposes to proceed with her “trust claim”, the defendant should have the benefit of an order that allows him, if necessary, to have his costs assessed with a view to enforcement of the costs order without awaiting the final determination of the proceedings. He should also have liberty to apply for a lump sum costs order in the event that the parties are unable to agree upon quantification of the costs without an assessment.
Subject to allowing the parties an opportunity to make submissions about the form of the orders, costs and directions for the further conduct of these proceedings, I propose to make orders to the following effect:
ORDER that probate of the will dated 27 May 2021 of Daphne Lygdas, who died on 26 March 2023, be admitted to probate in solemn form.
ORDER that probate of the will be granted to the defendant.
ORDER that these proceedings be referred to the Probate Registrar for completion of the grant forthwith.
ORDER that any requirement for sureties or an administration bond be dispensed with.
ORDER that any requirement for further compliance with the Probate Rules be dispensed with.
UPON the plaintiff giving to the Court the usual undertaking as to damages, ORDER, pending the final determination of these proceedings or further order, that the defendant by himself, his servants or agents be restrained (without the prior written consent of the plaintiff or the leave of the Court) from transferring, charging or otherwise dealing with the Lakemba unit otherwise than to occupy it, maintain it in good condition (effecting such, if any, repairs as may be necessary or convenient to ensure that it is reasonably habitable) or made ready for a sale.
RESERVE to the defendant liberty to apply for such, if any, orders as may be deemed by him necessary or convenient to lease or sell the Lakemba unit or to charge the title of the Lakemba unit as security for a loan for the purpose of effecting repairs or preparing the property for lease or sale.
ORDER that the orders made restraining entry on, or dealing with, the Lakemba unit be discharged.
In relation to the costs of these proceedings to date:
(a) ORDER that the defendant’s administration costs to be paid out of the estate of the deceased on the indemnity basis; and (b) ORDER that the defendant’s costs of these proceedings to date be paid by the plaintiff personally without recourse to the estate.
*********
Estate of Kouvakas; Lucas
Konakas
(1988) 14 NSWLR 698