The High Court, Probate & the unrepresented litigant

In December 2013 one week prior to dying of cancer Iris McLaren made a Will, (“the 2013 Will”) leaving the whole of her estate to Teresa Mariconte and naming Teresa as her executrix.

The 2013 Will replaced an earlier Will made in August 2004 (“the 2004 Will”), in which Iris made bequests to the Animal Welfare League NSW. Similarly in the 2004 Will Iris had bequeathed Homayoun Nobarani a share of her jewellery and personal possessions.

Homayoun filed a caveat – a notice that certain actions may not be taken without informing the person who gave the notice– claiming an interest based upon his rights under one or more prior wills against a grant of probate claiming the 2013 will was invalid for a number of reasons, including allegations that Iris’s signature was forged, that at the time of making the will her eyesight was impaired, that she was under the influence of medication, that she was suffering psychological problems, and that she had been hypnotised.

Teresa commenced proceedings for orders that the caveats cease to be in force (“the caveat motion”)  and also filed a summons for probate of the 2013 Will and a statement of claim, in which the Homayoun was not named as a defendant.

The Animal Welfare League, claiming an interest as a beneficiary under the 2004 Will, filed a second caveat. In February 2015 Teresa and the Animal Welfare League reached a settlement.

Probate hearing

Homayoun claimed that Iris had made a Will and was granted an adjournment by the court in order to locate it. In April 2015, Homayoun was told by the judge at a directions hearing – a short court appearance where orders are made about what should happen next in a case – that the trial in May 2015 would be confined to the caveat motion.

However in the intervening period Hormayoun’s caveats had expired, this was noted by the Court, and the parties were  informed that the hearing, which had already been scheduled in a few days’ time for the purpose of determining the caveat issue, would now be the claim for probate and directed that Teresa be joined as a defendant.  Further Homayoun was directed to file and serve a defence to the statement of claim and any supplementary evidence upon which he wished to rely in addition to the affidavits he filed in his caveat proceeding and identified during the directions hearing within two days.

At trial Homayoun represented himself. He had no legal training and his defence was in disarray. His applications for adjournments were refused.

The Court was satisfied that Teresa addressed the questions raised by Homayoun regarding Iris’s:

  • execution of the Will;
  • capacity; and
  • testamentary intention, knowledge, and approval.

The court ordered probate of the 2013 Will be granted to Teresa. Hamoyoun was ordered to pay the costs of the proceedings.

Court of Appeal

On appeal Homayoun alleged that he had been denied procedural fairness. He had numerous sub-grounds in support of this. Aside from the trial judge’s failure to give him an opportunity to be heard in relation to objections to his affidavit evidence all of these complaints arose out of the last minute change to the issue to be decided at the trial in May 2015.

The NSW Court of Appeal accepted that the other friend, who had poor English and little legal knowledge, was denied procedural fairness when he was given little warning that a hearing, originally scheduled to address caveats he had lodged, instead resolved the substantive issue of whether the will was valid.

However, a majority held that there was no actual injustice, as the estate had settled with the beneficiary of an earlier will (the Animal Welfare League) and the other friend couldn’t prove the existence of a different will said to be in his favour.

The NSW Court of Appeal, by majority, dismissed the appeal accepting that although Homayoun was denied procedural fairness due to the fact that he was given little warning that that a hearing originally scheduled to address caveats he had lodged had instead resolved the issue of whether the will was valid

High Court of Australia

On appealed to the High Court, Counsel, who argued that the Court of Appeal should have ordered a retrial, represented Homayoun.  Teresa argued that there was no denial of procedural fairness, but, if there was, it did not lead to a substantial miscarriage of justice.

The High Court unanimously held that Homayoun had an interest in challenging the 2013 Will and he was denied procedural fairness.

“All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.”

The denial of procedural fairness arose from altering the hearing, at short notice, from a hearing of the caveat motion to a trial of the claim for probate amounting to a “substantial wrong or miscarriage” because he was denied the possibility of a successful outcome.


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