In the estate of Ian Robert McPherson [2025] ACTSC 33, Elizabeth Ann Mulcahy (the plaintiff) applied. She sought the grant of probate for a Will dated 14 February 2024. She applied to the Supreme Court of the Australian Capital Territory for this grant. Still, after mediation, the parties reflected further. They agreed to seek probate for the deceased’s earlier Will of 26 June 2023. They also included the Codicil of 4 September 2023.
Background
The Registrar is a court official responsible for administrative tasks. This official raised concern about whether such a change can be made simply by consent. Case law makes this clear. The Court will not “pass over” a testamentary document unless there is evidence raising genuine doubt as to its validity.
The Supreme Court of New South Wales clarified the estate’s dual nature. This happened in Estate Kouvakas, Lucas v Konakas [2014] NSWSC 786. The Court clarified the estate’s dual nature. It explained the nature of a grant. The Court explained how it relates to probate or letters of administration. The Court also clarified the circumstances in which it can revoke such grants.
Core Principles
- Court Order and Title Instrument: A grant of probate is both a judicial order and an authoritative instrument of title. It confirms who can deal with the assets of a deceased estate.
- Revocation of Grants: The Court can revoke a grant in certain situations. These include the discovery of a later Will. This occurs after finding a formerly unknown but valid testamentary document.
- Replacing an administrator is necessary when the current executor or administrator needs to be substituted. A more suitable person ensures proper estate management.
Broader Significance
Interest Litigation: Probate operates as “interest litigation.” It requires parties to inform all individuals with a potential stake in the estate. They must be provided with an opportunity to be heard. This case underscores the importance of this principle in ensuring fairness and transparency in probate proceedings.
Due Administration of Justice: Probate law provides the proper administration of estates and protects the rights of beneficiaries. The Court’s role in this process is not just to approve private agreements between parties. It also ensures that justice is served. The law must be upheld.
Key Takeaway
Estate Kouvakas; Lucas v Konakas underscores the seriousness of probate grants. They are more than procedural orders and carry the weight of both judicial authority and proof of title. The Court retains the power to revoke them where justice requires it. The due administration of the estate also requires revocation, as seen in Cassarino v Cassarino [2020] NSWSC 454. The Supreme Court of New South Wales in Cassarino v Cassarino considers disputes between siblings. These disputes are over the two competing Wills of their late parent’s. These wills were the 2015 Will and a later 2016 Will.
Cassarino v Cassarino [2020] NSWSC 454 The Supreme Court of New South Wales in Cassarino v Cassarino involved a dispute. The case between siblings over two competing wills of their late parent. These wills were a 2015 Will and a later 2016 Will.
- 2016 Will: Favoured one child (the plaintiff) receiving half the estate with the rest divided between the other three siblings.
- 2015 Will: The estate was divided equally among all four children. The plaintiff sought probate of the 2016 Will, while the defendants supported the 2015 Will.
Settlement and Court’s Role
In Cassarino v Cassarino [2020] NSWSC 45, the parties eventually settled. They agreed to admit the 2015 Will to probate in solemn form. Nevertheless, Hallen J stressed that the Court can’t simply “rubber-stamp” consent orders in probate matters. The Court has an overriding responsibility to guarantee that any grant of probate complies with the law. Proper principles must also be applied according to the law.
Hallen J granted probate of the 2015 Will in solemn form, satisfied that:
Decision
The deceased completed the Will lawfully. They had testamentary capacity. There was a genuine dispute over the 2016 Will’s validity. The deceased had testamentary capacity; and
There was a genuine dispute over the 2016 Will’s validity.
Key Takeaway
Cassarino v Cassarino [2020] NSWSC 454 underscores that settlements in probate litigation do not override the Court’s duty. Even when there is agreement among all parties, the Court still needs to examine the evidence independently. This ensures that the grant of probate is legally sound. It also confirms that the probate adequately reflects the deceased’s testamentary intentions.
Rule 504 – Amending an Originating Process (Court Procedures Rules 2006, ACT)
Rule 504 of the Court Procedures Rules 2006 (ACT) outlines the procedures for amending the originating process. These are the documents used to start court proceedings, like a summons or statement of claim.
Context and Purpose
Part of Part 2.7. Rule 504 is a part of a broader section. This section governs the modification of court documents. These include pleadings and originating processes. These rules aim to achieve the “just, quick and cheap resolution of the real issues in the proceedings.”
What the Rule Provides
- Amendment Mechanism: Rule 504 enables changes to originating process documents where needed.
- Conditions and Limitations: Significant amendments often need the Court’s permission (leave). This is particularly true when sought later in proceedings. Permission is necessary to guarantee fairness to all parties.
Why the Rule Matters
Rule 504 reflects the balance between flexibility and procedural integrity. It allows parties to correct or refine their claims. It ensures that amendments do not prejudice other participants or delay the case.
Consequently, the Court directed the filing of evidence to explain setting aside the 2024 Will.
The Evidence Against the 2024 Will
The executor provided a supplementary affidavit explaining her change of view after a two-day mediation with the interested parties. She became concerned that her late father did not know or approve of the contents of the February 2024 Will. Supporting letters from the interested parties confirmed their agreement to pass over that Will in favour of the 2023 documents.
The evidence showed that, at the time of signing, the deceased was in the hospital. He was fatigued and given little opportunity to read or understand a 26-page document. The executor did not accept allegations that her father lacked testamentary capacity. Yet, she and the interested parties agreed there was a genuine concern about knowledge and approval.
The Court’s Decision
After reviewing the evidence, McCallum CJ noted the careful—if complex—mediation process. McCallum CJ accepted that there was a proper basis, beyond mere convenience, to pass over the 2024 Will, by consent. This permitted amendment of the probate application under r 504 of the Court Procedures Rules 2006 (ACT). The amendment was allowed to the originating application. It was seeking probate of the deceased’s Will dated 26 June 2023. The Codicil was dated 4 September 2023. The Court also authorised the withdrawal of three caveats. These are CAV 6 of 2024, CAV 7 of 2024, and CAV 13 of 2024.
After the filing of the amended application. The interlocutory application lodged in July 2024 was dismissed. It was determined that each party should bear their own costs. This should be done without drawing on the estate. The matter is remitted to the registry for issuing a Grant of Probate. This applies in common form for the Will and Codicil. Finally, the Court dispensed with the usual need to file a notice of intention to apply for probate. This decision streamlined the process under r 6 and r 3006 of the Court Procedures Rules 2006 (ACT)
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