There has been no grant of probate of any will. As already mentioned, there are several wills which were made in the five or so years prior to the death of Mr Alan Taranto. Each of them is in issue in proceedings commenced by the Tarantos and which are numbered BS1162 of 2008. They have been called, in the submissions, the "probate claims". There is a difference from will to will in respect of the beneficial entitlements and also in relation to the precise identify of the executors. But broadly speaking, under each of the wills there is, within the body of persons appointed executors by that will, a representative of the Tarantos and a representative of the Hansards. The Tarantos raise several questions as to the validity of those wills including allegations of undue influence by Mrs Hansard at least.

Now, also within those same proceedings there are further claims, which are the subject of paragraphs 15 to 26 of that Claim, which involve complaints against the Hansards relating to a large number of transactions during the lifetime of the deceased. These have been referred to in argument as the "inter vivos claims". There are allegations in the inter vivos claims which certainly have some factual overlap with those in the probate claims. The issues, of course, are not identical but it is common ground that there is at least that potential factual overlap.

The Tarantos have brought those claims for the benefit of the estate. At present, of course, they have no standing to do so because there has been no grant of probate and nor are they in receipt of any other grant in relation to the estate. In relation to such a grant they seek the appointment of Mr Fradgley, a solicitor, under a grant of administration, pendente lite, that is until the determination of those proceedings which they brought against the Hansards. That application is not opposed by anyone, and accordingly there will be an order pursuant to Section 6 of the Succession Act and subject to the requirements of the Registry that John William Fradgley be appointed Administrator of the estate of Angello (Alan) Taranto (deceased) pending the outcome of the claims referred to in paragraphs 1 to 14 of the claim in proceeding BS1162 of 2008. I should mention that paragraphs 1 to 14 concern the probate claims.

But what the Tarantos wish to do is to prosecute these proceedings including the inter vivos claims ahead of the determination of the question of which will, if any, is valid and who should be the executors. Accordingly they seek the Court's leave pursuant to Section 49(2) of the Succession Act. They do so on the basis that the leave is necessary to enable proceedings to be brought against the Hansards in circumstances where they say Mrs Hansard is precluded by a conflict of potential duty and interest from doing anything to protect the interests of the estate by prosecuting those proceedings.

To put it another way, if Mrs Hansard was presently an executor appointed under a will for which probate had been granted, it would be clear enough that she would have a conflict which would provide a sound basis for any proceedings which were of merit or apparent merit to be brought by, and prosecuted by, someone else for the benefit of the estate.

The applicants argue that there is at least a potential saving in time and money by the litigation of the inter vivos claims contemporaneously with the probate claims. There is, as I have said, at least potentially, a considerable factual overlap. The alternative is to have the probate claims go forward first. Depending upon the outcome of those claims it may or may not be necessary for there to be litigation in relation to the inter vivos claims, but I think that there is a sufficient prospect of the necessity for that litigation to make the applicant's submission a persuasive one.

In other words, I am satisfied that there is potentially a substantial benefit in the course which is proposed. There is not only the saving of costs and time but there is also the benefit of avoiding the risk of inconsistent factual findings if the probate claims and the inter vivos claims are tried together.

The first submission made by the Hansards to resist the grant of leave under Section 49(2) is upon an argument relating to res judicata. On behalf of the Hansards it was argued that there would be a risk to the Hansards in this way: if they successfully defended the inter vivos claims they could yet be exposed to another suit upon the same claims by executors or administrators of the estate. Because the Tarantos are not yet executors it was submitted that the judgment would not bind whoever became the executors including the Tarantos themselves. And of course there is the potential for someone who is not represented here today ultimately to become an executor or administrator. So unless there was a res judicata by which any executor or administrator of this estate would be bound, it was submitted that there was a potential injustice to the Hansards by permitting the inter vivos claims to go forward.

The answer to that, I think, is in the joinder of Mr Fradgley as a party to the proceedings. It is not necessary that he be an active participant. I would not expect that he would be, but once he is joined as a party I see no reason why the outcome of this litigation in relation to the inter vivos claims would not bind any subsequent grantee of probate or letters of administration. Any such person would be bound as a privy of Mr Fradgley as the present grantee. The preparedness of Mr Fradgley to be joined is not presently known. He can not be joined as a plaintiff without his consent. He could be joined as a defendant however, without his consent, although of course if he wished to be heard about that, then the joinder of Mr Fradgley could be revisited. But if joined as a defendant he would, of course, have his rights against the Tarantos as the plaintiffs or against any other party to those proceedings for costs as a judge in those proceedings might determine.

So the joinder of Mr Fradgley would thereby accord with the practice in what might be considered to be a more common context. That is where leave is granted under Section 49 or its equivalent elsewhere to a person to prosecute proceedings for the benefit of the estate where there has been a grant of probate. In that context the executor is made a party to the proceedings the subject of the grant of leave for the purpose of having the estate bound by the judgment in those proceedings. As to the practice in that respect I was referred to, as examples, what was said by Gray J in the Federal Court of Australia in Fride v The National Australia Bank [2001] FCA 907 at paragraph 185 and by Powell J in Ramidge v Waclaw [1988] 12 NSWLR 84 where his Honour, quoting from the 4th Edition of Jacobs Laws of Trusts in Australia, said:

"Where there are special circumstances and the relief sought is in the equitable jurisdiction of the Court the beneficiary may take proceedings in his own name, the trustee and other beneficiaries being added as defendants."

The same practice would apply in the probate jurisdiction. Accordingly the estoppel argument provides no basis for refusing this application if Mr Fradgley is joined as a party.

There were then a number of arguments put on behalf of the Hansards which were grouped together as discretionary considerations. Quite an extensive argument was developed both in writing and orally by counsel for the Hansards which was critical of certain aspects of the inter vivos claims. It was said that in some respects at least those claims were flawed or at least were unlikely to succeed.

In the case of this particular litigation it is difficult to form any reliable view today as to the likely outcome. I say that putting on one side some material which I have been asked to consider for a further application which I will mention shortly. That is material I have been asked to consider on a confidential basis, that is, without it being disclosed to the Hansards. I have not yet looked at that material so my comment about the difficulty in ascertaining where the merits are is made on the basis of the material which has been disclosed to the Hansards. It is sufficient to say that there appears to be an arguable case against the Hansards, but at the same time it is not shown to be an overwhelmingly strong case. It is difficult to say anything more definite than that.

The other discretionary considerations set out in the outline for the Hansards have been considered by me, and of course they all must be considered together. But ultimately they do not outweigh the benefits or potential benefits which I have discussed of the grant of leave to the Tarantos. The question of the rights of the Tarantos to the funds of the estate to cover their costs of prosecuting these proceedings and to protect them against the risk of costs orders against them in those proceedings is yet to be determined.

That brings me to the further application which is made today, which is said to be an application made in reliance on In Re Beddoe, Downes v Cottam [1893] 1 Ch 547. The application in that respect is not so much for advice and as to whether the proceeding should be prosecuted, but for an order whereby the Tarantos would be indemnified for their costs of prosecuting these proceedings and against the risk of an order against them in those proceedings. To consider that application I am asked to look at that evidence of a confidential kind to which I have referred. The course then which I propose to take is to look at that material overnight and then to hear counsel for the Tarantos in relation to it tomorrow morning. Time does not permit me to dispose of it this evening.

But it follows from what I have said that there will be an order, that pursuant to Section 49(2) of the Succession Act the applicants will be at liberty to commence and prosecute on behalf of the estate of the deceased the claims referred to in paragraphs 15 to 26 of the claim in proceedings BS1162 of 2008 until the completion of disclosure in those proceedings or until further or earlier order.

I mentioned at the outset of these reasons that there were, or are, many potential beneficiaries. Each of them is named as a respondent to the present applications. I am satisfied that each has been duly served or otherwise fairly notified of the application and has had an opportunity to be heard in relation to it. Some respondents appeared this morning to simply read material and to state their support for the application. There is evidence that some other respondents who are beneficiaries also support the application and, further, that there are some who do not. Again I have had regard to the evidence of the different attitudes within the beneficiaries to what is proposed by these applications, but the argument in favour of the grant of leave under Section 49, I think, is strong enough of itself to warrant the order which I have made quite apart from whatever support it has amongst the other beneficiaries.

The outcome, therefore, so far is that there will be an order which is unopposed for the appointment of Mr Fradgley and an order pursuant to Section 49(2) as I have described. I will adjourn the balance of the application for hearing by me tomorrow at a time which will be advised.

HIS HONOUR: The matter will be adjourned for further hearing at 2:30 tomorrow, 8 May 2008, and Mr Harding, for you, not before 3:00 pm.