4. Probate

4.1 Revocation of grant

One case that involved a probate matter, namely the revocation of a grant in common form, is Virginie-Pitel v Campbell [2010] NSWSC 1440. There were no particular issues of principle, but Slattery J makes some helpful summary observations about the relevant law.

The testator, Edith Fulton had three daughters: Kathleen, Julie and Suzanne. There were two wills in question. The June 1999 will appointed Kathleen as executor and gave her substantial benefits.[108] The December 2004 will appointed Suzanne as executor and left the whole estate to Julie and Suzanne.[109] Suzanne obtained a grant of probate in common form of the 2004 will in August 2006. Eventually there was a settlement between Suzanne and Kathleen that the probate of the later will be revoked and that the 1999 will should be admitted. The settlement also involved Suzanne brining a claim out of time under the Family Provision Act and Kathleen settling that claim as the executor under the 1999 will. Since April 2009 Julie had not taken any active part in the proceedings.[110] The estate was valued at approximately $175,000.

Slattery J identified the issues as whether:

  • Julie has been given proper notice of these proceedings and the settlement;
  • the court is justified in making the orders provided for in the settlement with respect to the probate; and
  • the court is justified in making the Family Provision order.[111]

Revocation of grant

Slattery J summarises the law with respect to the revocation of a grant of probate in common form:

The law that applies to the revocation of grant of probate in common form may be clearly stated. The court has a discretion to revoke grants of probate and letters of administration which are valid until they are set aside in exercise of that discretion: Ex Parte Keegan (1907) 7 SR (NSW) 565. There are a number of common circumstances in which a grant of probate may be revoked: where a false suggestion has occurred, whether fraudulently or ignorance of the truth which obscures a defect in title of the grant (such as for example where the testatrix does not know and approve certain words which appeared in the will, Re Fenwick (deceased) [1972] VR 646; where the will has been discovered after a grant of letters of administration or a later will after a grant of probate, Re Estate of Wilson (1991) 24 NSWLR 334; where executors or administrators become incapable of acting, Bates v Messner (1967) 67 SR (NSW) 187; where it appears to the court that a grant of probate or administration ought not to have been granted or that it contains an error, if the court is satisfied that the grant would be revoked at the instance of a party interested. The executor under a revoked grant is still bound to account, and to pay and transfer money and property received in his or her capacity as executor and to be appropriately reimbursed by a subsequent executor: Probate and Administration Act 1898, ss 40D and 90.[112]

Even though Kathleen and Suzanne had reached a settlement about the 2004 will, Slattery J said that it was still necessary for the court to determine the matter as between Kathleen and Julie—as she was not bound by the settlement ‘and against whom the invalidity of the will must be independently established’. A Slattery J noted, ‘although Suzanne is executor of the will Kathleen has appropriately joined Julie as a person interested in opposing the revocation, given her entitlement to half the estate under the 2 December 2004 will’.[113]

Neither Kathleen nor Julie filed a general caveat under pt 78 r 61; or a caveat for proof in solemn form under pt 78, r 62. If an interested person wants to raise a ground of invalidity other than want of proper execution, then the general caveat is the correct one to use.[114]

Julie was served notice of the hearing and Slattery J considered that it was adequate in the circumstances. Kathleen’s solicitor sought to serve Julie personally, but she declined to communicate with him. She made it clear through her husband that she did wish to come to the door to receive the letter or to have anything to do with the proceedings. After ‘a conversation of some length and a continuing refusal on Julie’s part to take the letter, Mr Kent left it in the post box adjacent to the front door’.[115] It was also sent to her email address. The letter provided ‘a full and fair account of the current state of the proceedings, of her rights to make a claim against the estate of the Family Provision Act, of the proposed terms of settlement and of the course of proceedings before the Court’.[116] In these circumstances, Slattery J held that Julie had been given notice. But should the orders be made?


The case against the 2004 will was one based on lack of capacity. In 2000 Edith was diagnosed with a benign but inoperable brain tumour. In September 2004 her condition began to decline. She was in and out of hospital and ultimately into nursing homes. During a brief period in 2004 she made the will. Expert evidence was introduced, as well as lay evidence.

Slattery J set out the way that these matters are to be approached, noting that the applicable onus of proof was explained in Bailey v Bailey (1924) HCA 21; (1924) 34 CLR 558 and Estate of Hodges (dec’d); Shorter v Hodges (1988) 14 NSWLR 698:

Where a doubt as to testamentary capacity is raised satisfying the evidentiary onus on the defendant, the onus passes to the propounder of the will to satisfy the court that the will being propounded is valid; but this does not mean that a doubt is enough; the doubt must be such that the court considers it sufficient, as a court of conscience, to prevent it finding for the will propounded: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 and Re Estate of Hodges (dec’d); Shorter v Hodges (1988) 14 NSWLR 698.[117]

Importantly, Slattery J reminds us that ‘a cautious approach’ is to be taken, citing the remarks of Gleeson CJ Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284, at 290:

This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that the woman who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that if the evidence of an unsound mind, the decision may be very difficult.[118]

On the basis of the evidence provided Slattery J considered that there were suspicions raised as to Edith’s testamentary capacity. The 2004 will revoked the 1999 will with ‘an entirely different disposition during a period of mental enfeeblement’. It was also ‘inofficious’ in making no provision for Kathleen, who should have been an object of her bounty. Hence, ‘fuller and clearer evidence of capacity is required’.[119] He found against the 2004 will.

So next was the family provision issue.

Family provision

Just because Kathleen and Suzanne had come to an agreement was not enough. Kathleen was executor of the 1999 will, which meant that she had obligations—in particular to consider the range of possible eligible persons. The court ‘was left in a complete vacuum’ about evidence in relation to eligible persons.[120] It was up to Kathleen and Suzanne to fill it ‘if they wish to persuade the Court to make orders they wish under the Family Provision Act in Suzanne’s favour’.[121] More needed to be done in this respect.

Another case that had the ‘combo’ of revocation of grant and a family provision claim is Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81. This is one of Brereton J’s judgments.

Lily died aged 81 in November 2005. Her husband, Abraham, had predeceased her. They were survived by two sons and two daughters. By her will, Lily left their house in Bondi to the two sons equally.

The daughters seek revocation of the grant of probate of the will on the basis of lack of capacity. They also alleged that the will was made through the undue influence of their brother Albert. In the alternative they made a family provision claim.[122] As Brereton J commented, the case ‘involved a thorough and sustained attack on the credit of the sons’.[123]

In the end, and in a judgment extending to 62 pages, Brereton J held that Lily had capacity; that there was no undue influence; that Lily knew and understood her will; and that the girls should fail in their quest for more. Nonetheless he also said that the sons were ‘utterly unreliable witnesses’ and that it was ‘one of those rare occasions on which it is possible and appropriate to go so far as to say that they have given evidence dishonestly’. This is strong stuff in a probate case. However, notwithstanding such conclusions, he said that ‘it does not serve to establish the opposite of their evidence, particularly where the daughters bear the onus of proof’.[124] And, with respect to the daughters, Brereton J also considered that not everything they said had to be accepted either, as they were ‘very interested witnesses, who held strong views as to the unlikelihood of their mother having voluntarily made the will, and as a result lacked objectivity’.[125]

The things Brereton J noted about the will were these:

  • it was not irrational on its face—it left her only substantial asset, her house, to her husband and to her sons on his death (as Brereton J noted, ‘Lily is no rarity amongst testators in attempting to make testamentary provision in respect of property held in joint tenancy’);
  • the daughters weren’t ignored, if Albert predeceased his mother the property would go to her children equally;
  • the sons were needier than the daughters, who were in a better financial position;
  • Albert had always resided at the house and he could likely live there with his brother, but not his sisters;
  • Lily said to her Rabbi that she had taken care of the girls and now she had to take care of Albert—he thought she was ‘the same Mrs Ezekiel’, and this was some years after the will was made;
  • the solicitor and attesting witnesses supported the evidence of capacity for the mirror wills that Lily and her husband made;
  • Lily’s GP said she was mentally well and normal;
  • psychiatrists retained by each of the parties provided a joint report, after a conclave, in which they agreed that ‘there was insufficient medical evidence to conclude that Lily lacked testamentary capacity’.

With respect to undue influence, Brereton J usefully points out the differences between the inter vivos doctrine and the probate doctrine in this respect, and that in the law of wills, undue influence means

coercion, by actual force or threats—but not by appeals to sentiments of affection, gratitude, pity or ties of kindred, which may legitimately be pressed on a testator. Influence generally in the form of persuasion or moral pressure to favour a person by will, whatever its degree, is not invalidating in probate unless it produces a will contrary to the will of the testator.[126]

The burden of proving undue influence is also borne by those who impugn the will. It is a very serious allegation. Brereton J will take you through all the ins and outs of the allegations. As I noted above, the daughters failed.

They also failed in their family provision claim. They only asset of value was the house. It had already been transferred to the sons, so it was now notional estate if it was going to be anything.

The daughters based their claims on three main arguments:

  •  that a will leaving everything to the children equally would have been ‘a moral and fair will’, as all four children had a legitimate expectation of benefit under their mother’s will, arising from ‘a culture of mutuality and cooperation in financial matters and equality, and there was no good explanation for leaving them out;
  • why should Albert have a particular claim to accommodation at the expense of his siblings—and the house is going to have to be sold to pay costs in any event so should be considered ‘liquid’;
  • their brothers were not truthful nor accurate about their own circumstances.

That first argument is the gut instinct dynastic claim, that I referred to above. It reveals a complete lack of comprehension about the nature of the family provision jurisdiction and the basis upon which a claim can be brought and the discretion of the court exercised.

Brereton J’s response was spot-on in this respect:

the daughters’ submission overlooks that, under our system of succession, including the FPA, equality is not a starting point—it is the will that is the starting point, and it is unnecessary to justify or explain a departure from equality.[127]

Recalling observations of Young J in his 1987 decision in Stewart v McDougall, Brereton J emphasised that the court’s role was limited to making adequate provision for an eligible person’s proper maintenance and advancement, and not asking whether the will was fair, or why it did not deal with beneficiaries equally.[128] Besides which, even where an eligible person shows that he or she ‘reasonably needs more assistance’, that does not mean necessarily that the claimant has been left without adequate provision in the required family provision sense—‘let alone that an order for provision must be made’.

a full investigation of all circumstances must be undertaken to ascertain whether a wise and just testator ought to have made greater provision (or, which amounts to the same thing, that the community would expect that greater provision should have been made).[129]

With respect to the second argument, Brereton J pointed to the fact that only Albert was dependent on his parents and had been all his life and ‘[t]estators are usually expected to make provision for their dependents’. The need was for accommodation and allowing him to continue to live in his mother’s house, where he had always lived, ‘was in accordance with Lily’s and Abraham’s moral duty, and with what the community would have expected of them’.[130]

What about the sisters’ point that this was all rendered pointless as the house had to be sold anyway because of the cost of all the litigation? So Albert couldn’t live there anymore after all. Brereton J said that even if this ‘may defeat achievement of the purpose … that would not warrant expunging the provision made for a dependent’.[131]

Now, as for the third argument, while Brereton J viewed the sons’ arguments ‘with great suspicion’, this was no obstacle to making ‘whatever family provision order would otherwise be appropriate in favour of the daughters’. Even if they had some additional undisclosed income—which was being suggested—it wasn’t so large as to make a material difference.

What mattered, ultimately was that

all interested parties are adult children of the deceased, and although many other factors were adverted to, two considerations dominate all others: the first is the relative financial positions of the siblings; and the second is that one of them has always been, and remained, dependent on his parents for accommodation.[132]

The net result would be that any adjustment in favour of the daughters would leave the sons in a worse-off position. Therefore it was ‘impossible to see how it could be said that the testator was not entitled to provide for her sons rather than her better, if only moderately, resourced daughters. To do so would have taken from those who had least, to give to them who had most’.[133]

Putting it all together, because the will was not irrational on its face, Lily was regarded, at least prima facie, as having testamentary capacity. While she had physical health issues, none of it pointed to a cognitive defect. The mere absence of provision for her daughters did not, of itself, raise a doubt as to capacity—especially in view of what she said to her rabbi. There was not enough, therefore, to shift the evidentiary onus to the sons. Even if there were a doubt, ‘any such doubt is not sufficiently substantial to prevail over the evidence that tells in favour of Lily being of sound mind, memory and understanding at the time of execution of the Will’.[134]

And when it came to the undue influence assertion, as there was not sufficient evidence to prove coercion—and it required proof, as distinct from issues going to knowledge and approval—‘the daughters cannot by a side-wind cast the onus of proof of knowledge and approval on the sons by raising a suspicion of undue influence’.[135]

Just because you change your will is not necessarily suspicious. In this case the sons were not present when the wills of their parents were made. It was managed by a solicitor, quite correctly, in their absence, and they read and executed them. All very regular.

Then, as for the family provision proceedings, the issue is not whether the will ‘is just or moral’. Even if the daughters in this case had been able to demonstrate that they were left with inadequate provision for their proper maintenance, ‘it would not have been appropriate as a matter of discretion to make an order that reduced provision for the worse-off sons in favour of the better-off daughters’.[136]

The bottom line is that it is not about what a child thinks is fair. So it is a little troubling to find websites that say this:

If you’ve been left out of a Will, or treated unfairly in a Will, you can most certainly do something about it…

The law does require that certain people be fairly and properly provided for in a Will, and we are experts in helping people get what they are fairly entitled to…

Our long experience shows that many Wills are not legally binding. A court can make orders to redistribute the Estate to pay moneys where people have been unreasonably left out, or are named in a Will but not properly provided for in the circumstances…

It’s a good selling point, but obscures the real picture behind the overuse of the word ‘fair’. Adult children should be discouraged in most cases from making claims. To many of them what is ‘fair’ is entirely different from what their mother or father might consider ‘fair’—and in many cases the court agrees with the parent, but after considerable expense to the claimant and, what is saddest of all, to the estate.

[108]Virginie-Pitel v Campbell [2010] NSWSC 1440, [1].

[109]Virginie-Pitel v Campbell [2010] NSWSC 144, [24].

[110]Virginie-Pitel v Campbell [2010] NSWSC 1440, [2].

[111]Virginie-Pitel v Campbell [2010] NSWSC 1440, [3].

[112]Virginie-Pitel v Campbell [2010] NSWSC 1440, [37].

[113]Virginie-Pitel v Campbell [2010] NSWSC 1440, [38].

[114]Virginie-Pitel v Campbell [2010] NSWSC 1440, [27], referring to Powell J in Azzopardi v Smart (1992) 27 NSWLR 232 at 238.

[115]Virginie-Pitel v Campbell [2010] NSWSC 1440, [34].

[116]Virginie-Pitel v Campbell [2010] NSWSC 1440, [35].

[117]Virginie-Pitel v Campbell [2010] NSWSC 1440, [42].

[118]Virginie-Pitel v Campbell [2010] NSWSC 1440, [43].

[119]Virginie-Pitel v Campbell [2010] NSWSC 1440, [50].

[120]Virginie-Pitel v Campbell [2010] NSWSC 1440, [61].

[121]Virginie-Pitel v Campbell [2010] NSWSC 1440, [61].

[122]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [2].

[123]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [18].

[124]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [21].

[125]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [22].

[126]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [40].

[127]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [143].

[128]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [144].

[129]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [145].

[130]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [146].

[131]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [146].

[132]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [148].

[133]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [149].

[134]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [158].

[135]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [160].

[136]Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, [162].