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[2026] NSWCA 76
procedural. The orders of Adamson JA made on 25 March 2026 were set aside; Ms Waters’ notice of motion filed on 13 February 2026 was dismissed; costs were reserved.
The Court cancelled the earlier order requiring Ms Williment to provide $100,000 security for Ms Waters’ costs of the appeal. The key change was that Ms Waters had since brought her own cross-appeal, which would require overlapping preparation and reduce the work attributable only to Ms Williment’s appeal. The Court also considered the reasons given for security and found that they did not amount to special circumstances. It did not conduct a full assessment of the appeal’s merits and said the grounds were reasonably arguable on the incomplete record before it. The evidence indicated that security in a significant amount was likely to prevent the appeal from continuing.
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2,452 words · generated 08/10/2026
This judgment concerns security for costs in an appeal, not the final determination of the appeal about the deceased’s wills. The Court of Appeal reviewed an order made by Adamson JA on 25 March 2026 requiring Lavinia Williment to provide $100,000 security for Laura Waters’ costs of the appeal. Under that order, the appeal had been stayed on 23 April 2026 and, unless security was paid, was to be dismissed on 22 May 2026 ([1]).
4 cited instruments linked from this judgment.
The underlying dispute concerned Dr Percy Waters, who died in 2020 aged 101, and a series of wills made between 2009 and 2019. Ms Williment had been his carer from March 2008 until his death. Ms Waters and her sister were the deceased’s daughters. The wills made from 2011 onwards increased the share passing to Ms Williment and reduced the daughters’ shares ([2], [8]).
Ms Waters challenged the 2019 will and sought probate of a 2009 will instead. Mr Frank, the deceased’s solicitor and executor of the later wills, initially propounded the 2019 will and alternative later wills. After Mr Frank became ill, an administrator, Mr Emanuel, was appointed and continued the defence of the probate claims. Ms Williment defended allegations concerning her conduct and the gifts made to her, but did not herself propound a will ([3]-[7], [41]-[43]).
At first instance, Elkaim AJ revoked the grant of probate for the 2019 will and ordered probate of the 2009 will. The principal reasons included findings that suspicious circumstances had not been dispelled, that the deceased lacked knowledge and approval of the later wills, and that Ms Williment had exercised probate undue influence. The judge also accepted expert evidence on testamentary capacity ([9], [24]-[27]). Ms Williment appealed the substantive decision on 16 January 2026 ([10]).
Ms Waters applied for security for costs on 13 February 2026. Adamson JA granted the application, relying on what she considered a disparity between Ms Williment’s limited role at trial and broad appeal, a ground challenging the 2009 will despite Ms Williment having no financial interest in it, and the asserted weak prospects of the appeal ([11]). After that order, Ms Waters filed a cross-appeal against the first-instance costs decision, challenging the order that Mr Frank could recover his costs from the estate on an indemnity basis ([12], [20]-[21]).
The Court of Appeal concluded that the cross-appeal materially changed the circumstances behind the security order. It set aside Adamson JA’s orders, dismissed Ms Waters’ motion for security, and reserved costs ([58]).
The Court first addressed its authority to revisit the order. It noted that a party ordinarily bears a heavy burden when seeking review under s 46(4) of the Supreme Court Act 1970 (NSW), including showing material error or that the decision was plainly unreasonable ([14]). But the broader principle for interlocutory orders is that a court may vary, discharge or suspend an order where circumstances warrant ending or changing its operation ([15]-[17]).
The Court’s key finding was that Ms Waters’ cross-appeal was a material change. The cross-appeal challenged the costs order in favour of Mr Frank and raised questions about his actual or constructive knowledge, or recklessness, concerning the later wills. It also challenged the finding that Mr Frank was not a cause of the litigation. Resolving those issues would require analysis of the first-instance findings and potentially the evidence ([20]-[21]).
The Court considered the practical connection between the cross-appeal and Ms Williment’s appeal. The parties accepted that both matters should be heard together and use one set of books. The cross-appeal required preparation by reference to the same trial findings and possibly the same evidence. The Court therefore reasoned that the costs of the cross-appeal would overlap to a “not insignificant extent” with the appeal costs. Ms Waters also confirmed that she would pursue the cross-appeal even if Ms Williment’s appeal were dismissed ([22]). The original security order had been based on an estimate of $101,075 for Ms Waters’ ordinary costs of the whole appeal. The new cross-appeal context meant that the appellate costs could not be treated as costs caused solely by Ms Williment’s appeal ([22]).
On re-exercising the discretion, the Court considered each asserted special circumstance. First, it rejected the argument that Ms Williment’s limited role at trial made her appeal unreasonable. Her role had been defined by the issues affecting her directly and by the presence of a separate party responsible for propounding the wills. When Mr Frank became unable to continue, Ms Williment declined to take over the “heavy lifting” of the probate case. The trial judge appointed an administrator to provide a contradictor representing the estate’s interests ([41]-[43]). The Court considered it explicable that Ms Williment would then appeal the whole decision when neither Mr Frank nor Mr Emanuel did so and she had a financial interest in challenging the outcome ([44]-[45]).
Second, the Court accepted that Ms Williment would face real difficulties with ground 16, which challenged the validity of the 2009 will despite the parties’ earlier agreement that it would be admitted if the later wills failed. But the ground was narrow, and the Court considered it unlikely to require extensive submissions or impose significant additional costs. The other appeal grounds would be the main focus ([46]-[48]).
Third, the Court rejected the proposed combination of impecuniosity and poor appeal prospects as special circumstances. The Court may consider merits, but the application for security is not a preliminary hearing of the appeal. The material before it lacked all the first-instance evidence and the full transcript, so the judges said it was difficult to form a reliable view beyond that the grounds were reasonably arguable ([49]-[50]). The findings below were interlinked, and an error in the treatment of expert evidence might affect several aspects of the reasoning ([51]-[52]). The Court therefore was not satisfied that special circumstances justified security ([53]).
Finally, the Court addressed stultification. It did not need to reach a concluded view because it had already decided that special circumstances were absent. Nevertheless, it was satisfied that security in any significant sum was likely to stultify the appeal. It relied on evidence of limited financial resources, income support, rented accommodation, the absence of a known funding source, no-win no-fee representation, and an entitlement of about £8,834 under the brother’s will ([54]-[56]).
The judgment describes the governing principles as existing principles rather than announcing a wholly new test. Before this decision, UCPR r 51.50(1) permitted security for appeal costs in “special circumstances” ([29]). The Court drew on the summary in Preston v Harbour Pacific Underwriting Management Pty Ltd: special circumstances are required; there is no general rule restricting what may qualify; impecuniosity alone will usually not suffice; an appeal may warrant security if it is hopeless, unreasonable or harassing; and likely stultification of a bona fide, reasonably arguable appeal will usually weigh against security ([30]).
The judgment also explains the role of stultification. It is not automatically decisive, but it will usually be a significant consideration ([33]). Impecuniosity by itself does not prove that an order will prevent an appeal from proceeding. The Court referred to the evidentiary onus generally borne by the respondent to the security application and noted that the inference may depend on whether any third party might fund the security or whether significant funds may become available ([34]).
The decision’s main contribution in this case is its application of the material-change principle to the later filing of a cross-appeal. The Court held that the cross-appeal changed the relevant costs assumptions because it required overlapping appellate work and would proceed independently of Ms Williment’s appeal ([19]-[22]). That did not create a categorical rule that every cross-appeal defeats security. The Court’s reasoning depended on the issues raised, the anticipated joint hearing, the shared factual record, the overlap in preparation, and Ms Waters’ confirmation that her cross-appeal would proceed regardless ([21]-[22]).
After the review, the earlier security order no longer governed the appeal: it was set aside and the motion dismissed ([58]). The Court did not alter the substantive probate decision, decide the grounds of appeal, or determine the separate cross-appeal. Its ruling was procedural and confined to whether the security order should remain in force.
At [17], the Court said that when it is satisfied there has been a material or significant change warranting variation or cessation of an interlocutory order, it may re-exercise the discretion, including by reference to additional evidence. In plain English, a review of this kind can involve reconsidering the original discretionary question where a sufficiently important change has occurred; it is not confined to asking whether the earlier judge made an error.
At [22], the Court said the cross-appeal “necessarily diminishes the extent to which the time and costs of the appellate proceedings will be occasioned solely on account of the appeal.” In plain English, because Ms Waters was bringing her own appeal requiring much of the same preparation, it was no longer accurate to treat all the estimated appellate work as costs generated by Ms Williment’s appeal alone.
At [45], the Court rejected the argument that the difference between Ms Williment’s trial role and appeal role was a special circumstance. It explained that her limited role below was readily explicable, as was her decision to appeal once the other parties who had propounded the wills did not do so. In plain English, the Court assessed the procedural history and financial interests rather than treating a change in litigation role as inherently unreasonable.
At [50], the Court stated that “an application for security is not to be turned into a preliminary hearing of the appeal.” In plain English, the court deciding security can consider whether an appeal appears hopeless or reasonably arguable, but should not attempt to resolve the appeal’s disputed facts and law in advance.
At [54], the Court said security in “any significant sum” was likely to stultify the appeal. In plain English, the evidence indicated that a substantial security requirement would probably prevent the appeal from continuing. The Court noted that this assessment was not necessary to its conclusion on special circumstances, but recorded it as a conclusion supported by the financial evidence.
The decision is most relevant where a party seeks to revisit a security-for-costs order made in an appeal and can point to a material development after the order. Here, the development was not simply new evidence of limited means. It was the filing of a cross-appeal by the party seeking security, raising issues likely to overlap with the existing appeal and requiring examination of the same first-instance findings and evidence ([19]-[23]).
The reasoning may be relevant when the cross-appeal is to be heard together with the appeal, uses the same record, and is expected to generate overlapping preparation. Those features mattered because the first security order had been calculated by reference to the respondent’s estimated costs of defending the appeal ([22]). The judgment does not say that a cross-appeal necessarily removes a basis for security. It examines the practical overlap and whether the cross-appeal would proceed independently.
The decision also addresses arguments that an appeal is unreasonable because the appellant had a narrower role below, or challenges a finding that does not directly benefit the appellant. Those matters were considered in context: the appellant’s role had been shaped by the presence of a separate propounder and an administrator, while the disputed ground was unlikely to add significant expense ([39]-[48]).
Finally, the case is relevant where security is sought on the combined basis of an appellant’s impecuniosity and allegedly poor prospects. The Court emphasised the need to avoid deciding the appeal prematurely, particularly when the security court does not have the complete evidence or transcript ([49]-[53]). The case does not establish that impecuniosity is irrelevant; it says it is generally insufficient by itself and assesses whether the actual evidence suggests likely stultification ([30], [34], [54]-[56]).
The supplied judgment does not cite any later decisions applying, distinguishing or otherwise treating Williment v Waters (No 2). Its decision date is 1 May 2026, and the text provided contains no post-decision treatment. It is therefore not possible, on this source alone, to describe how later courts have treated it.
The judgment itself explains the authorities it relies on. It applies the interlocutory-order principles in Hutchinson v Nominal Defendant, Proietti v Proietti and Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd to the question of material change and the Court’s power to re-exercise discretion ([15]-[17]). It applies Mualim v Dzelme to the caution against turning security applications into preliminary appeal hearings ([50]). It refers to Eco-Pact Pty Ltd v The Law Society of NSW when explaining the difficulty of assessing prospects without the full evidence and transcript ([50]).
The decision also draws on the established security principles summarised in Preston, and refers to authorities on stultification and the evidentiary basis for assessing it ([30]-[34]). Those are the authorities discussed by this judgment, not evidence of how subsequent courts have treated this judgment.
The judgment leaves the merits of Ms Williment’s substantive appeal unresolved. It describes the 16 grounds and some of the evidence issues, but does not determine whether the first-instance findings on testamentary capacity, knowledge and approval, suspicious circumstances or probate undue influence were correct ([24]-[28]). It also does not decide Ms Waters’ cross-appeal about the first-instance costs order ([12], [20]-[22]).
The Court did not define a general threshold for when a cross-appeal will amount to a material change in circumstances. Its conclusion was tied to the factual overlap, likely joint hearing, shared preparation and Ms Waters’ confirmation that her cross-appeal would proceed independently ([19]-[22]). The judgment does not address how the result might differ if a cross-appeal were unrelated, unlikely to proceed, or expected to create little overlap in costs.
Nor did the Court determine the exact evidentiary requirements for proving stultification in all cases. It reiterated that impecuniosity alone does not establish the point and that the circumstances matter ([34]). It found the evidence sufficient in this case, but did not make a concluded determination necessary to the disposition ([54]-[56]).
The Court also did not decide whether ground 16 was ultimately sustainable. It noted the agreement below concerning the 2009 will and described the ground as facing real difficulties, while concluding that it was unlikely to cause significant additional costs in the context of the appeal ([46]-[48]). The merits remained for the substantive appeal.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Williment v Waters (No 2) [2026] NSWCA 76
Hearing dates: 22 April 2026
Date of orders: 1 May 2026
Decision date: 01 May 2026
Before: Leeming JA; Kirk JA; Stern JA
Decision: (1) Set aside the orders of Adamson JA on 25 March 2026.
(2) Dismiss the notice of motion filed by the respondent on 13 February 2026.
(3) Reserve costs.
Catchwords: APPEALS — practice and procedure — review of single Judge of Appeal — whether a material change of circumstances — where additional evidence before the Court — where cross-appeal has been filed — where discretion re-exercised
PRACTICE AND PROCEDURE — costs — security for costs — appeal — whether special circumstances exist — where it was contended that the appeal was unreasonable in nature and with poor prospects — where appellant impecunious — where Court found that no special circumstances exist — where order for security is likely to stultify the appeal
Legislation Cited: Supreme Court Act 1970 (NSW), s 46(4)
Uniform Civil Procedure Rule 2005 (NSW), rr 51.50, 51.58
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Boros v Pages Property Investments Pty Ltd [2021] NSWCA 50
Brown v King [2022] NSWCA 75
Cassaniti v Katavic [2022] NSWCA 230
Eco-Pact Pty Ltd v The Law Society of NSW [2024] NSWCA 206
Fokas v Mansfield (No 3) [2017] NSWCA 315
Hutchinson v Nominal Defendant [1972] 1 NSWLR 443
Marks-Isaacs v Fowler [2005] NSWCA 37
McGinn v Cranbrook School [2016] NSWCA 226
Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152
Moore (a pseudonym) v The King [2024] HCA 30
Mualim v Dzelme [2020] NSWCA 333
Pioneer Park Pty Ltd (In liq) v Australia and New Zealand Banking Group Limited [2007] NSWCA 344
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Proietti v Proietti [2025] NSWCA 11
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
Schwanke v Alexakis; Camilleri v Alexakis (2024) 114 NSWLR 459; [2024] NSWCA 118
Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136
Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417
Waters v Frank; Frank v Waters [2025] NSWSC 1389
Waters v Frank; Frank v Waters (No 2) [2025] NSWSC 1586
Williment v Waters [2026] NSWCA 37
Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240
Yandil Holdings Pty Ltd v Insurance Company of North America (1985) 3 ACLC 542
Category: Principal judgment
Parties: Lavinia Williment (Appellant / Applicant on Motion)
Laura Marie Waters (First Respondent / Respondent on Motion)
Andrew Philip Frank (Second Respondent)
Kevin Emanuel (Third Respondent)
Representation: Counsel:
L Ellison SC with F Salama (Appellant / Applicant on Motion)
JEF Brown with LJ McIntyre (First Respondent / Respondent on Motion)
Solicitors:
Mitchell Lawyers (Appellant / Applicant on Motion)
Fleming Law (First Respondent / Respondent on Motion)
File Number(s): 2025/500511
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
By application under s 46(4) of the Supreme Court Act 1970 (NSW) and Uniform Civil Procedure Rules 2005 (NSW), r 51.58, the appellant seeks the variation or discharge of orders made by Adamson JA on 25 March 2026. Those orders require her to provide security for costs of the first respondent (Ms Waters) in the sum of $100,000. That security having not been paid, the appeal was stayed on 23 April 2026 pursuant to her Honour’s orders and, unless payment is made in the interim, will be dismissed pursuant to those orders on 22 May 2026.
The underlying proceedings arose from disputes regarding wills made between 2011 and 2019 (impugned wills) by Dr Percy Waters (the deceased), who died aged 101 in 2020. In those wills, over time, the deceased increased gifts to the appellant, who was the deceased’s carer from March 2008 until his death in September 2020, and decreased gifts to the deceased’s two daughters (Ms Waters and Ms Goss). On 24 June 2022, Ms Waters commenced proceedings against Mr Frank, one of the executors of the impugned wills and also the deceased’s solicitor, in which she sought to revoke a grant of probate in common form to a will the deceased executed in 2019 (2019 will), and instead to have probate granted in respect of a will the deceased executed in 2009 (2009 will), under which the appellant was not a beneficiary. The appellant was subsequently joined as second defendant in those proceedings. Mr Frank brought a cross-claim against Ms Waters seeking a grant of probate in solemn form of the 2019 will.
On 8 November 2024 Mr Frank was excused from further conduct of the proceedings on account of illness. An administrator was appointed to the estate and added as third defendant and cross-claimant. The appellant’s role below was limited to the defence of claims of undue influence. She did not propound any will.
In November 2025, Elkaim AJ revoked the grant of probate in respect of the 2019 will and instead ordered that probate be granted in solemn form of the 2009 will. His Honour made orders as to the costs of the proceedings, which included an order that Mr Frank was entitled to recover his costs from the deceased’s estate on an indemnity basis. The appellant seeks to appeal against the whole of the decision below. Since Adamson JA made her orders, Ms Waters has filed a cross-appeal in respect of the order of Elkaim AJ as to Mr Frank’s costs.
The key issues before the Court were:
(i) whether there was a material change of circumstances warranting the cessation or variation of the orders of Adamson JA;
(ii) whether special circumstances existed to warrant an order that security for costs be provided under UCPR, r 51.50(1); and
(iii) whether an order for security for costs was likely to stultify the appeal.
The Court held (Leeming, Kirk and Stern JJA), having been satisfied that there was a material change of circumstances that warranted the cessation or variation of the orders of Adamson JA of 25 March 2026 and dismissing Ms Water’s motion seeking security for costs:
As to issue (i*)*
(1) In circumstances where the Court is satisfied that there is a material (or significant) change of circumstances warranting the cessation or variation of an interlocutory order, under s 46(4) of the Supreme Court Act the Court may re-exercise the discretion exercised by the single Judge of Appeal including, if appropriate, by reference to additional evidence: [14]-[17]
Hutchinson v Nominal Defendant [1972] 1 NSWLR 443; Proietti v Proietti [2025] NSWCA 11; Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417, applied.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Moore (a pseudonym) v The King [2024] HCA 30, referred to.
(2) The filing of the cross-appeal by Ms Waters constitutes a material change of circumstances from those that were before Adamson JA. The cross-appeal will require examination of the evidence and factual findings in the substantive proceedings below. Further, the filing of the cross-appeal necessarily diminishes the extent to which the time and costs of the appellate proceedings will be occasioned solely on account of the appeal: [19]-[22]
(3) The making available to the Court of additional evidence as to the appellant’s entitlements under a grant of probate in respect of her brother’s will, does not constitute a material change of circumstances given that the appellant did not suggest, still less seek to prove, that that material was not available to her by the time of the hearing before Adamson JA: [23]
As to issue (ii*)*
(4) The contended disparity between the limited role taken by the appellant below and her notice of appeal which challenges all of the key findings at first instance, does not constitute a special circumstance supporting an application for security. The limited role that the appellant took at first instance is readily explicable. It is also readily explicable why she would seek to appeal from the whole of the judgment below once it was apparent that neither Mr Frank nor Mr Emanuel would seek to do so: [37]-[45]
(5) The existence of ground 16 of the notice of appeal, which seeks relief in which the appellant has no interest, does not constitute a special circumstance, given that it is highly unlikely that the ground will require expansive consideration and where the main focus of the appeal will inevitably be on the other grounds of appeal: [46]-[48]
(6) The contended “poor prospects” of the appeal in circumstances of the appellant’s impecuniosity does not constitute a special circumstance. Whilst the Court may consider the merits of the proposed appeal, an application for security is not to be turned into a preliminary hearing of the appeal. In circumstances where the material before this Court does not include all of the evidence before or the transcript of the first instance proceedings, it is very difficult to express any reliable view as to prospects beyond their being reasonably arguable: [49]-[53]
Mualim v Dzelme [2020] NSWCA 333, applied.
Eco-Pact Pty Ltd v The Law Society of NSW [2024] NSWCA 206, referred to.
As to issue (iii)
(7) Whilst it is unnecessary to reach a concluded view as to stultification, the Court was satisfied on the evidence before it that a grant of security for costs in any significant sum is likely to stultify the appeal: [54]-[56]
THE COURT: This is an application under s 46(4) of the Supreme Court Act 1970 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.58 to discharge or vary orders of Adamson JA on 25 March 2026. By those orders, the appellant, Lavinia Williment, was required to provide security for the costs of the first respondent, Laura Waters, of appeal proceedings brought by Ms Williment in the sum of $100,000: Williment v Waters [2026] NSWCA 37. Pursuant to her Honour’s orders, as that security has not been paid, the appeal proceedings were stayed on 23 April 2026 and if security remains outstanding, the proceedings will be dismissed on 22 May 2026.
The underlying proceedings were heard by Elkaim AJ at first instance: Waters v Fr**ank; Frank v Waters [2025] NSWSC 1389 (substantive decision at first instance). They arose out of disputes relating to a number of wills made between 2009 and 2019 by Dr Percy Lloyd Waters (the deceased), who died on 4 September 2020 aged 101 years leaving an estate valued at $2.7 million. Ms Williment was the carer (and, on her account, friend) of the deceased from March 2008 until his death (save for a short period of no more than two weeks when Ms Williment was sacked from, and then reinstated in, her role as carer). Ms Waters is one of the deceased’s two daughters but was estranged from, and did not see or speak to the deceased, after around February 2009. The deceased’s other daughter, Victoria Goss, who has lived in the United States since October 1992, did not communicate with the deceased between 2009 and 2015, and thereafter saw him on her annual visits to Australia. The second respondent, Andrew Frank, was the deceased’s solicitor from 5 October 2011 and prepared four wills for the deceased between 2011 and 2019 (inclusive) (together, the impugned wills). He was the executor of those wills. The third respondent, Kevin Emanuel, was granted administration of the estate on 8 November 2024 (by orders of Lindsay J) after Mr Frank became ill and was excused from further conduct of the proceedings.
On 30 April 2021 probate in common form of a will executed by the deceased on 5 August 2019 (the 2019 will) was granted to Mr Frank. By proceedings commenced against Mr Frank on 24 June 2022, Ms Waters sought orders revoking that grant of probate and instead granting probate to Geoffrey Murray (the deceased’s solicitor for many years up until Mr Murray’s retirement in June 2011, after which there was no evidence that he had contact with the deceased) of a will dated 3 June 2009 (the 2009 will). On 25 October 2022 Ms Williment filed a notice of appearance in those proceedings. On 21 November 2022, pursuant to orders of Hallen J on 14 November 2022, Ms Waters filed an amended statement of claim, naming both Mr Frank and Ms Williment as defendants.
…in the event the court determines probate should be granted in respect of a Will that leaves a disposition to the Second Defendant [Ms Williment], an order any administrator of the estate holds the entirety of any gift to the second defendant under any Will on trust for the residue estate to the exclusion of the second defendant.
Thus, Ms Waters’ claims in the substantive proceedings below were that:
the impugned wills were invalid by reason of the deceased’s lack of testamentary capacity at the time of their execution, lack of knowledge and approval by the deceased in circumstances where they were executed in suspicious circumstances and (added by way of amendment on the first day of the trial, but advanced before then in submissions) Ms Williment’s undue influence; and
whilst recognising that this claim was precluded by the decision in Schwanke v Alexakis; Camilleri v Alexakis (2024) 114 NSWLR 459; [2024] NSWCA 118, that the gifts to Ms Williment under the wills were procured by equitable undue influence such that those gifts were held by Mr Frank on trust for the residuary estate.
As already noted, in the cross-claim Mr Frank propounded the 2019 will, and in the alternative, each of the other impugned wills. The parties agreed before Elkaim AJ that, if none of the impugned wills should be admitted to probate then a grant should be made of the 2009 will. Elkaim AJ observed that “[t]his agreement took out of contention the validity of the 2009 will”.
By way of background it can be noted that:
in the 2009 will, 50% of the deceased’s residuary estate (after some specific bequests to the deceased’s niece’s family and to friends) was to go to each of Ms Waters and Ms Goss (and broadly the same bequests were made in an earlier will dated 25 June 1999);
in the impugned wills, over time, the deceased increased the gifts to Ms Williment, decreased the gifts to each of Ms Waters and Ms Goss, and he also made varying gifts to the former carer of the deceased, friends and charities; and
in the 2019 will, 20% of the deceased’s residuary estate plus jewellery was to go to each of Ms Waters and Ms Goss; 21% to Ms Williment; 20% to the deceased’s niece (and her family); 10% to Alexandra Fraser (Ms Waters’ daughter) and the remainder to the former carer of the deceased, friends and charities.
After a hearing which took place between 20 and 31 October 2025, in the substantive decision at first instance Elkaim AJ revoked the grant of probate to Mr Frank of the 2019 will, granted probate in solemn form to Ms Waters of the 2009 will and dismissed the cross-claim. On 19 December 2025 his Honour made orders as to costs, in effect providing that the costs of Ms Waters, Mr Frank and Mr Emanuel could be recovered from the deceased’s estate on an indemnity basis and making no order as to the costs of Ms Williment: Waters v Frank; Frank v Waters (No 2) [2025] NSWSC 1586 (costs decision at first instance).
By notice of appeal filed on 16 January 2026 Ms Williment appeals against the substantive decision at first instance. Mr Emanuel has filed a submitting appearance in respect of that appeal. By notice of contention filed on 13 February 2026 Ms Waters contends that Elkaim AJ’s decision should be affirmed on additional grounds, including on the basis of equitable undue influence on the deceased by Ms Williment.
(a) the disparity between Ms Williment’s role in the court below (where she limited her submissions to the issue of equitable undue influence) and the ambit of the appeal to this Court; (b) ground 16 of her notice of appeal is in respect of a matter in which she can have no conceivable financial interest, namely whether the 2009 will was valid, and was at odds with the position Ms Williment took below; and (c) the weak prospects of Ms Williment’s appeal;
Ms Williment had failed to discharge her onus of establishing that an order for security would stultify the appeal; and
counsel for Ms Williment did not take issue with the quantum of security sought.
By notice of cross-appeal filed on 7 April 2026, after Adamson JA ordered that security be provided, Ms Waters appealed against the costs decision at first instance, seeking orders including that Mr Frank pay Ms Waters’ costs on the ordinary basis and that Mr Frank indemnify the estate for the costs of Mr Emanuel. The cross-appeal raises substantive issues as to whether Mr Frank had actual or constructive knowledge that the impugned wills could not be supported or was reckless as to this, and whether his Honour erred in finding that Mr Frank was not the, or a, cause of the litigation.
On this application for review, Ms Williment seeks leave to rely upon evidence that was not before Adamson JA, comprising:
a will dated 6 April 2020 of Barry James Williment, Ms Williment’s brother, leaving 10/100 shares of equal value of his residuary estate to Ms Williment (Barry Williment’s Will); and
a grant of probate of Barry Williment’s Will issued on 13 May 2025 recording that the application for probate stated that the gross value of Mr Williment’s estate in the United Kingdom was £174,700 and the net value amounts to £88,344 (the UK probate).
In order to succeed on this application, Ms Williment ordinarily would be required to show that there has been a material error of law or fact in the decision sought to be reviewed, or a disregard of some material consideration or the taking into account of an irrelevant consideration, or that the decision was plainly unreasonable and therefore wrong: Michael Wilson & Partners Ltd v Emmott (No 4) [2025] NSWCA 152 at [27]; McGinn v Cranbrook School [2016] NSWCA 226 at [1] (Beazley P), [4] (Gleeson JA) and [42] (Simpson JA); Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 at [4] and [6]; Fokas v Mansfield (No 3) [2017] NSWCA 315 at [22]. An applicant under s 46(4) of the Supreme Court Act bears a heavy burden: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48].
However, as is well established, courts in general have power to vary, discharge or suspend an interlocutory order where “circumstances arise which warrant in the [court’s] view a cessation of the continuance of the order as earlier made”: Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-448 (Isaacs J) cited with approval in Adam P B**rown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178; [1981] HCA 39. As to this, in Proietti v Proietti [2025] NSWCA 11 at [21] this Court explained that “[t]he variation of interlocutory orders generally requires a material change of circumstances to be established”; see also Moore (a pseudonym) v The King [2024] HCA 30 at [26].
Consistent with this authority, in Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417, where this Court considered an application under s 46(4) of the Supreme Court Act to set aside orders of Sackville AJA that security for the costs of an appeal be provided, Basten JA said (at [6]):
Limitations on the power of a court to set aside or vary orders once they have been entered do not apply to judgments and orders which do not determine any claim for relief or dismiss proceedings: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 36.16(3). The rules would not, in any event, override the power given by s 46(4) which reflects the inherent power of a court identified by Isaacs J in Hutchinson. …
Two matters were relied upon by Ms Williment as material changes of circumstances since the orders of Adamson JA were made: the filing of the notice of cross-appeal by Ms Waters and the making available to the Court of Barry Williment’s Will and the UK probate.
As to the first of these, we are satisfied that the filing of the notice of cross-appeal constitutes a material change of circumstances from those that were before Adamson JA. In oral submissions before her Honour, counsel for Ms Waters noted that there was “still time to file cross appeals”, and a notice of intention to cross-appeal was filed on 16 January 2026, but her Honour was not informed that a cross-appeal would be filed nor was she told what grounds might be raised.
The cross-appeal challenges order 3 of the costs decision at first instance, in which Elkaim AJ ordered that Mr Frank was entitled to recover his costs from the estate of the deceased on an indemnity basis. Mr Frank is the respondent to whom the cross-appeal is directed but Ms Williment and Mr Emanuel are also respondents.
In the cross-appeal Ms Waters contends that Elkaim AJ took into account irrelevant matters such as his finding that he “had the distinct impression that in his dealings with the deceased [Mr Frank] may well have not noticed the influence of the second defendant because of his friendship with the deceased” and that Elkaim AJ should have taken into account that Mr Frank had “actual or constructive knowledge, or would have had such knowledge had he not been reckless” that the wills he was propounding could not be supported. In circumstances where Elkaim AJ did not make a finding that Mr Frank had such knowledge, this contention will require some examination of the evidence and factual findings in the substantive proceedings below. Similarly, Ms Waters’ contention in the cross-appeal that his Honour mistook the facts in failing to find that Mr Frank was the, or a, cause of the litigation will require analysis of the findings, and likely also the evidence, in the proceedings below.
As was accepted by counsel for Ms Waters, the efficient and sensible course is for the cross-appeal to be heard with the appeal with one set of books for both. The same counsel will no doubt be briefed on the cross-appeal and the appeal, and the hearing of the cross-appeal will require preparation and submissions by reference to the detail of the findings (and potentially also the evidence) in the proceedings below. The costs of the cross-appeal will, to a not insignificant extent, overlap with the costs of the appeal. Moreover, counsel for Ms Waters confirmed in oral submissions that the cross-appeal will proceed irrespective of whether the orders of Adamson JA are set aside and, if not, irrespective of whether the appeal is dismissed pursuant to her Honour’s orders. The filing of the cross-appeal thus necessarily diminishes the extent to which the time and costs of the appellate proceedings will be occasioned solely on account of the appeal. In circumstances where the orders of Adamson JA were predicated upon evidence of Ms Waters’ solicitor estimating that Ms Waters’ ordinary costs of the whole of the appeal would be $101,075 (inclusive of GST), and her Honour ordered security for costs in the sum of $100,000, and it is now apparent that Ms Waters will herself be prosecuting appellate proceedings involving detailed factual analysis, the filing of the cross-appeal is a material change of circumstances which warrants the variation or cessation of the orders made by Adamson JA. It is thus necessary for this Court to re-exercise the discretion exercised by her Honour.
I have decided that there should be a grant of probate in respect of the 2009 will, primarily because:
(1) [Mr Frank and Mr Emanuel] have failed to dispel the existence and effect of suspicious circumstances [being the increasing shares to Ms Williment in each will and her presence when the wills were being discussed and executed] in respect of each of the wills from 2011. In other words, [they] have not established, in the light of suspicious circumstances, that the deceased had an unfettered knowledge and approval of the contents of the wills.
(2) [Ms Waters] has established the existence of probate undue influence by [Ms Williment] at the time of execution of each of the same wills.
I have also accepted, in respect of cognitive capacity, the views of [Ms Waters’] expert, but emphasise the dominating reasons for my decision are the findings in the previous paragraph.
In making those findings, Elkaim AJ placed considerable reliance upon the opinions of Professor Carmelle Peisah, a psychiatrist specialising in old age, instructed by Ms Waters, which his Honour accepted. Prof Peisah had not met the deceased but prepared her report on the basis of “extensive” documentary material (it is not clear, on the evidence before this Court, to what material she had access). His Honour’s finding that the deceased did not have testamentary capacity was reached by “[i]nserting Prof Peisah’s opinion into the requirements of testamentary capacity”, in circumstances where a number of lay witnesses and the deceased’s treating doctors did not share Prof Peisah’s view of the deceased’s capacity. His Honour also discounted the forensic significance of the deceased’s notes as to his testamentary wishes because he found that Ms Williment was exerting undue influence over the deceased.
His Honour relied upon the presence of Ms Williment when the impugned wills were read back to the deceased, her “unquestionable influence” over the deceased and the growing complexity of the wills as supporting his finding that Mr Emanuel had not established that the deceased had an accurate knowledge of the content of the wills and approved them. It can be noted that one of the opinions of Prof Peisah that Elkaim AJ accepted was that the deceased “may not have fully appreciated or understood what he was executing” and “probably lacked awareness of those who did NOT have a claim on his bounty”. As to probate undue influence, his Honour agreed with Prof Peisah that there was “an extreme risk of undue influence” in the impugned wills and that the deceased was emotionally captive to Ms Williment. His Honour also relied upon a range of circumstantial factors (some of which were interlinked) being the susceptibility and vulnerability of the deceased, Ms Williment’s control of his bank accounts, payments made by the deceased to Ms Williment, her presence when the impugned wills were executed and the increasing benefits to her under the wills and observed that these factors would be the factors establishing equity undue influence.
As this summary demonstrates, his Honour’s key findings were interlinked and were in significant respects reliant upon Prof Peisah’s opinions.
Ms Williment relies in her notice of appeal upon 16 grounds of appeal. These challenge his Honour’s:
factual findings, which are contended either to be erroneous or to be undermined by failure to engage in critical factual enquiries (grounds 1 and 2);
approach to the test for, and findings as to, testamentary capacity (grounds 3 and 12);
approach to or, in some cases, reliance upon, the evidence of various witnesses:
(a) Mr Frank, who only gave very limited oral evidence given that at the time of the trial he was suffering from advanced cancer and had had a fall causing befuddlement of his memory (ground 4); (b) Prof Peisah (grounds 5 to 7); (c) Dr Gupta, Dr Benito and Dr Tiwari, the deceased’s treating doctors (grounds 8 to 10); (d) Malcolm Carver, who was a friend of the deceased’s and whose workshops the deceased attended, including on a number of overseas trips (ground 11);
Under UCPR, r 51.50(1), “[i]n special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal”.
Principles relevant to ordering security under UCPR, r 51.50 were summarised by Basten JA (Ipp JA and Hoeben J agreeing) in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [18]:
(1) no order for security should be made in the absence of “special circumstances”;
(2) consideration of what may constitute special circumstances should not be fettered by some general rule of practice;
(3) impecuniosity, without more, will usually be insufficient;
(4) an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature;
(5) where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made, and
(6) the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal.
The existence of special circumstances is a necessary, but not necessarily sufficient, condition. Matters relied upon as special circumstances are likely also to weigh in favour of the residual discretion: Brown v King [2022] NSWCA 75 at [8]-[10] (Kirk JA).
As to the relevance of stultification, in Cassaniti v Katavic [2022] NSWCA 230 Macfarlan JA held that (at [13]):
…the absence of a contention by the appellants that the appeal will be stultified if they are ordered to provide security for costs is not of itself a “special circumstance” so as to justify a security for costs order. Rather, if such a contention had been made, it might have provided a reason for refraining from making a security order if the basis for it were otherwise established.
The fact that an order for security for costs will stultify an appeal is not determinative but will usually be a significant factor guiding the exercise of the Court’s discretion whether to make an order for security for costs: Yandil Holdings Pty Ltd v Insurance Company of North America (1985) 3 ACLC 542, at 545; see also Tyneside at [46]; Brown at [10].
As Basten JA explained in Pioneer Park Pty Ltd (In liq*)* v Australia and New Zealand Banking Group Limited [2007] NSWCA 344 at [51], the likelihood that an order for security will stultify proceedings is not established merely by reference to impecuniosity. It has often been said that a respondent to an application for security bears the evidentiary onus of establishing that an order for security would stultify an appeal; see eg Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 at [28]; Boros v Pag**es Property Investments Pty Ltd [2021] NSWCA 50 at [25]; Marks-Isaacs v Fowler [2005] NSWCA 37 at [24] (Handley JA). There is, however, no inflexible rule that the respondent to an application for security must always lead evidence going to stultification. As was emphasised by Clarke J in Yandil at 545, much will depend upon the circumstances of the particular case. For example, where there is evidence that individual respondents to applications for security are impecunious but no evidence suggesting that there is someone who might stand behind them or might reasonably be expected to make funds available to meet an order for security, or that there is any real likelihood of them coming into significant funds to enable them to provide security, then stultification might readily be inferred.
We are satisfied that, in this case, no order for security should be made.
Ms Waters relies upon three matters as constituting special circumstances warranting an order for security under UCPR, r 51.50.
The first matter Ms Waters relies upon as special circumstances is that the appeal is “of an unreasonable nature” having regard to the disparity between the limited role taken by Ms Williment below and her notice of appeal which challenges all of the key findings of Elkaim AJ. In this regard, Ms Waters relies upon the fact that in oral submissions in the substantive proceedings below senior counsel for Ms Williment expressly limited Ms Williment’s involvement to responding to Ms Waters’ claim that the gift to Ms Williment should be excised from the impugned wills by reason of equitable undue influence. She did not propound any will. Ms Waters also places reliance upon the fact that, when Mr Frank became indisposed such that he was no longer available to continue as an active party to the proceedings, Ms Williment declined to take over his role in propounding the impugned wills, and upon the fact that neither Mr Frank nor Mr Emanuel, who at different times did propound the impugned wills, have sought to appeal against the substantive decision at first instance.
We are unpersuaded that these matters, whether alone or in conjunction with other matters relied upon, constitute special circumstances supporting an application for security.
Ms Williment, as a beneficiary under the 2019 will which Ms Waters sought to challenge, was served with a notice of proceedings and filed a notice of appearance on 25 October 2022. She attended a mediation in the proceedings on 31 October 2022. At a directions hearing before Hallen J on 14 November 2022 her counsel explained that her involvement was because she wished “to preserve her entitlement in respect of the 2019 will, and it's on that basis she is here”. It is of some significance that at that directions hearing Hallen J made it clear to her that:
…in circumstances where Mr Stevens [for Mr Frank] is propounding each of the wills which benefit in you in any event, that you will be at risk as to costs.
Ms Williment filed a defence on 1 December 2022, denying many of Ms Waters’ allegations and raising a number of matters which, she alleged, answered Ms Waters’ allegations, but as already noted, in the cross-claim she filed only a submitting appearance.
On 1 November 2024, there was a directions hearing before Lindsay J when Mr Frank became ill and unavailable to continue to conduct the proceedings. Ms Waters’ position was that the court should not appoint any replacement for Mr Frank, or at least should not give the replacement any guarantee about their exposure to costs, given that Ms Williment was an active party in the proceedings opposing Ms Waters’ relief. Ms Williment declined to take on the role of propounder of the 2019 will on the basis that she was not willing to take on the “heavy lifting of the case” and it was not appropriate for her to do so in circumstances where there were a number of beneficiaries under the various impugned wills and Ms Williment did not represent the interests of the estate as a whole. Lindsay J (without expressing any criticism of the position taken by Ms Williment) found that there had to be “some substitute” for Mr Frank because the public interest required that there be a real contradictor “where there’s a number of fractured interests in the estate…”. His Honour also observed that Ms Williment would have an exposure to costs, by implication referring to the risk that she would have if she were to propound the cross-claim and seek to take on the role previously assumed by Mr Frank.
By orders of 8 November 2024 his Honour excused Mr Frank from further conduct of the proceedings, save as to costs, appointed the proposed administrator, Mr Emanuel, and directed that he be joined as third defendant and be given conduct of the proceedings so far as it relates to the defence and cross-claim, and that his costs be paid from the estate on an indemnity basis. In the substantive proceedings before Elkaim AJ, Ms Williment filed two sets of written submissions, made oral submissions and senior counsel for Ms Williment cross-examined various witnesses at the hearing. As to the focus of Ms Williment’s involvement in those proceedings, senior counsel for Ms Williment explained at the commencement of the hearing before Elkaim AJ that:
Your Honour will determine my client, and having read the written submissions, my client does not propound any will. That's the task of the first. and then the third defendant. My client's specifically here and is named as a defendant in response to the allegations directed at her that if the wills are, any of the subject wills are admitted the particular clause with my client should be excised. I have said, and I confirm that my client neither consents or oppose[s]: I'll let Mr Stevens [counsel for Mr Emanuel] deal with that task because he is propounding the will.
At the hearing before Elkaim AJ, Mr Emanuel submitted that he was not “the proper contradictor to defend the ‘equity’ claims” as the relief sought by Ms Waters “affect[ed] only [Ms Williment]” and made it plain that the division between his role and that of Ms Williment at the hearing would be that he would conduct the defence of the probate claims and Ms Williment would conduct the defence of the equity claims. This was described by senior counsel for Ms Williment before Adamson JA as “an active effort to avoid duplication at trial”. As Ms Williment submitted, she was obliged to seek to defend the benefit which passed to her under the impugned wills.
Mr Emanuel, as administrator, has no financial interest in appealing against the orders of Elkaim AJ and it is by no means clear that he could be indemnified by the deceased’s estate for his costs were he to do so. By contrast, Ms Williment has a real financial interest in doing so.
In these circumstances, it is not a special circumstance that Ms Williment is appealing against the whole of the judgment of Elkaim AJ whereas before Elkaim AJ she assumed a more limited role. In circumstances where it had been made plain to her, by Hallen J, that she could be at risk as to costs on account of her involvement in the proceedings, and there were a number of beneficiaries under each of the impugned wills, it was readily explicable why she did not seek to take over the conduct of the cross-claim after Mr Frank became indisposed, and why she assumed the role she did in the proceedings at first instance. It is also readily explicable why she would seek to appeal from the whole of the judgment below once it was apparent that neither Mr Frank nor Mr Emanuel would seek to do so.
The second matter Ms Waters relies upon as special circumstances is that the appeal is “of an unreasonable nature” having regard to ground 16 of the notice of appeal, which contends that Elkaim AJ erred in not considering the validity of the 2009 will, in circumstances where Ms Williment agreed before Elkaim AJ that the validity of that will was not in issue and has no financial interest in challenging the validity of that will.
Ms Waters is correct that Ms Williment will face real difficulties in prosecuting ground 16 in circumstances where it was agreed between the parties before Elkaim AJ that the 2009 will should be admitted to probate if the impugned wills failed. However, ground 16 is premised on a narrow contention which relies upon the finding of Elkaim AJ that a diagnosis of dementia by Dr Gupta in 2020 was not unique given other indicators of cognitive impairment in the deceased’s medical records going back to 2006. In the context of the appeal and cross-appeal as a whole, it is highly unlikely that ground 16 will require expansive submissions or detailed reference to evidence, or will put Ms Waters to any significant additional cost or inconvenience. The main focus of the appeal will inevitably be on the other grounds of appeal.
In these circumstances, we are not satisfied that ground 16 of the notice of appeal is itself a special circumstance.
The third matter Ms Waters relies upon as special circumstances is the combination of what Ms Waters submits are the “poor prospects” of the appeal and the agreed position that Ms Williment is impecunious such that Ms Waters is unlikely to be paid her costs of defending the appeal if this Court orders that Ms Williment pay Ms Waters’ costs of the appeal.
The primary difficulty with this contention is that, whilst the Court may consider the merits of the proposed appeal, an application for security is not to be turned into a preliminary hearing of the appeal: Mualim v Dzelme [2020] NSWCA 333 at [8]. In circumstances where the material before this Court does not include all of the evidence before Elkaim AJ or the full transcript of the proceedings at first instance, it is very difficult to express any reliable view as to prospects beyond their being reasonably arguable; see Eco-Pact Pty Ltd v The Law Society of NSW [2024] NSWCA 206 at [107]-[109].
Whilst we recognise that Ms Williment must succeed in overturning the three different bases upon which Elkaim AJ found that the impugned wills should be set aside, the evidentiary foundation and analysis which led to those findings is interlinked such that if, by way of example, Ms Williment were able to show error in the reliance by Elkaim AJ on the evidence of Prof Peisah, that might undermine significant aspects of his Honour’s reasoning on each of the grounds upon which his Honour found that the 2019 will was not valid.
Moreover, whilst this is a case where there were multiple witnesses who gave oral evidence and were cross-examined before Elkaim AJ, his Honour made an adverse credibility finding only about Ms Williment, and that finding was predicated upon his assessment of the comparison between Ms Williment’s oral evidence and file notes written by Mr Murray in 2009 and 2010 when he was the deceased’s solicitor. It is also of some significance that key evidence, such as that of Mr Frank, was given only by affidavit. Further, the challenges Ms Williment makes to his Honour’s reliance on the opinions of Prof Peisah are primarily predicated not upon Prof Peisah’s credibility or reliability as a witness but upon the weight which should properly be given to her opinions having regard to the lay evidence relied upon by Mr Emanuel and Ms Williment before Elkaim AJ (which included affidavit and some oral evidence from a number of the deceased’s treating doctors) and upon the ambit of the opinions she expressed (and Elkaim AJ accepted).
Thus, despite Ms Williment’s impecuniosity, we are not satisfied that there are special circumstances meriting an order for security.
Q. Do you know of any circumstance by which Ms Williment might be able to fund the appeal or fund any security for costs order?
A. No.
Beyond this, it is now clear that Ms Williment was only entitled to some £8,834 under her brother’s will in the United Kingdom. That is unlikely to enable her to pay any significant sum as security.
Nor, even having regard to the failure of Ms Williment to put on evidence as to her financial resources (save for the material relating to her brother’s will which was belatedly put before this Court), would we draw an inference that there is some, undisclosed, financial resource to which Ms Williment has access, or that she has some, significant, undisclosed financial resource.
Given the matters set out above, and that neither party made submissions as to costs, costs should be reserved.
The orders of the Court are:
Set aside the orders of Adamson JA on 25 March 2026.
Dismiss the notice of motion filed by the respondent on 13 February 2026.
Reserve costs.
**********
Amendment to representation on coversheet.
Williment
Waters (No 2)
(1981) 148 CLR 170
(2011) 93 NSWLR 311
(2024) 114 NSWLR 459
(2004) 60 NSWLR 143
The orders of Adamson JA made on 25 March 2026 were set aside; Ms Waters’ notice of motion filed on 13 February 2026 was dismissed; costs were reserved.
On 2 December 2022, Mr Frank brought a cross-claim against Ms Waters, seeking an order that there be a grant of probate in solemn form to the 2019 will, or alternatively, to wills made in 2017, 2016 or 2011. Ms Williment filed a submitting appearance on the cross-claim, which was defended by Ms Waters.
On 22 June 2023 Ms Waters further amended her statement of claim to include a claim that:
Ms Waters’ application for security for costs in the sum of $100,000 was also filed on 13 February 2026. The application was heard on 23 March 2026 and Adamson JA made orders on 25 March 2026. Her Honour’s reasons for making her orders (at [1] above) were, in summary:
special circumstances (as required by UCPR, r 51.50(1)) were constituted by:
The second matter relied upon by Ms Williment, the making available to the Court of Barry Williment’s Will and the UK probate, does not constitute a material change of circumstances given that Ms Williment did not suggest, still less seek to prove, that that material was not available to her by the time of the hearing before Adamson JA. However, as was conceded by counsel for Ms Waters in oral submissions, there could be no objection to this evidence being taken into account on the re-exercise of the discretion.