Probate litigation examines the circumstances of Will preparation, focusing on the source of instructions, the testator’s understanding, and the presence of capacity, undue influence, or suspicious circumstances. Capacity concerns the testator’s understanding of the Will’s nature and effect. Undue influence involves external pressure affecting the testator’s intentions.
Re Estate of Moss, deceased; Larke v Nugus [2000] WTLR 1033
In England and Wales, a Larke v Nugus request permits interested parties to obtain information from the solicitor who prepared the Will. The request typically specifies the applicant’s relationship to the deceased, their interest in the estate, and the particular information or documents sought. Solicitors are generally expected to respond within 14 to 28 days, subject to the complexity of the matter.
Australian jurisdictions have not adopted the Larke v Nugus procedure, but similar disclosure practices are routine. Practitioners usually make an informal written request to the will-drafter, specifying the client’s relationship to the deceased, their interest in the estate, and the information sought. Reference to Larke v Nugus may facilitate early disclosure. All communications should be documented, and a follow-up request is generally issued before any formal application. This approach clarifies issues and demonstrates efforts to resolve disputes without litigation.
If no response is received within a reasonable period, a follow-up request should be made. Where a solicitor declines to cooperate or withholds information without justification, court intervention may be necessary. In these circumstances, the solicitor is expected to provide an explanation and produce relevant documents. This process addresses concerns before litigation and reflects the transparency principles underlying Larke v Nugus. Disclosure may be limited to clarify the testator’s intentions and protect vulnerable parties, subject to confidentiality obligations.
What information should be included?
A solicitor generally provides the complete file relating to the preparation of the Will. This commonly includes:
- Contemporaneous notes of all meetings and telephone calls
- Confirmation of where meetings took place and who was present
- How the instructions were given (telephone, home visit, etc.)
- Whether the deceased was alone when giving instructions
- How the provisions of the Will were explained to the deceased
- What steps did they take to satisfy themselves about the deceased’s capacity?
- Whether earlier Wills were discussed
- Who was present at the execution.
A Larke v Nugus request clarifies the circumstances of Will preparation before proceedings commence. It enables interested parties to investigate testamentary capacity, undue influence, knowledge and approval, or fraud. The request typically seeks the will-maker’s file, including attendance notes, correspondence, draft documents, capacity assessments, and meeting records. These materials may evidence the testator’s intentions and mental state at execution.
While the Larke v Nugus procedure is not part of Australian succession law, the principles of disclosure, transparency, and early dispute resolution are relevant. In practice, solicitors in contested estates request similar information from the will-drafter to assess potential challenges and clarify issues before proceedings. Typically, a solicitor seeks details of the Will’s preparation, including file notes, correspondence, and observations on capacity and third-party involvement. No Australian jurisdiction mandates a Larke v Nugus-style request; the process remains informal.
In contested probate matters, prospective challengers often lack sufficient information to assess whether litigation is justified. Larke v Nugus requests are used to obtain information from the will-drafter, but these requests are voluntary and do not compel disclosure.
Preliminary Discovery
Fuda v Dawes [2026] NSWSC 360 confirms that where informal requests are unsuccessful, preliminary discovery under rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) is available to obtain a deceased’s solicitor’s Will file before commencing substantive probate proceedings.
The dispute in Fuda v Dawes [2026] NSWSC 360 arose following the death of Kenneth Hambridge (the deceased) in 2025. Probate had been granted in respect of his final Will, executed in 2019, with Rhonda Dawes (the defendant) appointed as executor. Lina Fuda (the plaintiff) was excluded from the 2019 Will and sought preliminary discovery of the deceased’s solicitor’s files relating to both that Will and an earlier Will believed to have been executed in 2017. Her standing to challenge the grant of probate depended upon establishing that she was a beneficiary under the earlier testamentary instrument.
The circumstances surrounding the 2019 Will raised legitimate questions. Although it was handwritten using a commercial Will kit, it had been witnessed by two solicitors from the firm that had previously acted for the deceased. The plaintiff had obtained only limited information, including an unsigned draft of a 2017 Will naming her as a beneficiary. The plaintiff therefore commenced proceedings under rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) seeking preliminary discovery of the relevant solicitor’s files, an application vigorously opposed by the defendant.
Solicitors File
Justice Bennett held that further investigation was necessary because the available evidence concerning the 2017 Will did not support an inference that the unsigned draft constituted the final executed Wil Her Honour concluded that access to thesolicitor’ss file was reasonably necessary to determine whether the Will executed in 2017 was in substantially the same terms as the draft document and whether the plaintiff had any viable basis for bringing probate proceedings.
Her Honour also accepted that the circumstances surrounding the destruction of any 2017 Will could significantly influence any challenge to the validity of the later Will or any attempt to prove the existence of an earlier testamentary instrument and materially affect theplaintiff’ss prospects of succes In particular, it was relevant to ascertain whether the earlier Will had been destroyed contemporaneously with the execution of the 2019 Will, or whether instructions for its destruction were given only after the deceased had developed dementia.
The solicitor’s file concerning the 2019 Will was equally important. Given the deceased’s diagnosis of dementia and the existence of guardianship and financial management orders, Bennett J accepted that questions concerning testamentary capacity, knowledge and approval could legitimately arise. The solicitor’s records concerning the preparation and execution of the Will, together with any attendance notes and instructions, could assist not only in assessing the merits of a proposed challenge but also in evaluating the defences likely to be available to the executor. Justice Bennett therefore held that these documents were reasonably necessary to enable the plaintiff to make an informed decision about whether to commence proceedings.
In exercising the Court’s discretion, Justice Bennett placed considerable weight on the overriding purpose provided in section 56 of the Civil Procedure Act 2005 (NSW), observing that preliminary discovery would promote the just, quick and inexpensive resolution of the real issues in dispute. Her Honour ultimately ordered production of the solicitor’s files sought under rule 5.3 and directed that the executor pay the plaintiff’s costs of the application.
Insufficient evidence for a beneficiary
The plaintiff believed they were a beneficiary under an earlier Will executed in 2017 but was excluded from the deceased’ss 2019 Will, which had already been admitted to probate. Although the plaintiff possessed an unsigned draft of the earlier Will and evidence suggesting an executed version once existed, they lacked sufficient information to determine whether they had a viable claim to revoke the grant of probate.
The plaintiff sought preliminary discovery of the deceased’s solicitor’s files for both the 2017 and 2019 wills, electing not to commence proceedings without adequate evidence.
Relevance of the solicitor’s file
Justice Bennett recognised that the missing information was central to any potential probate challenge. In relation to the alleged 2017 Will, the solicitor’s file could reveal:
- whether an executed Will actually existed;
- whether its terms matched the unsigned draft;
- when and why it was destroyed; and
- whether instructions to destroy it were given before or after the deceased developed dementia.
Without this information, the plaintiff could not assess whether a claim existed or evaluate the prospects of propounding an earlier Will.
Similarly, the file for the 2019 Will could provide:
- information about its preparation,
- the role of the solicitors who witnessed it,
- the instructions provided by the deceased, and
- evidence relevant to testamentary capacity, knowledge, and approval.
These matters were significant given thdeceased’s’s dementia diagnosis and the existence of guardianship and financial management orders.
Scope of preliminary discovery
The Court confirmed that preliminary discovery is available not only to establish a possible cause of action but also to enable an applicant to evaluate potential defences available to the executor. Bennett J accepted that the solicitor’s’s file might ultimately demonstrate that the proposed challenge lacked merit. An outcome that would still serve the purpose of rule 5.3 by enabling an informed decision about whether to commence proceedings. Preliminary discovery discourages speculative litigation and supports meritorious claims.
Interaction with Larke v Nugus requests
An application for a grant of probate or administration may involve invoking procedures commonly used in ordinary civil proceedings for the “disclosure” of documents material to the application – such as “discovery of documents” (Uniform Civil Procedure Rules 2005 NSW Part 21);
- administration of interrogatories (UCPR Part 22);
- subpoenas for production (UCPR Part 33);
- notices to produce (UCPR Parts 21 and 34); and
- orders for the production of documents (CPA section 68, if not also CPA section 61).
Preliminary discovery procedures (governed by UCPR Part 5) are not commonly invoked in the context of probate proceedings. In practice, the procedures most commonly deployed are subpoenas for production; notices to produce to court; and applications for a direction that affidavits be filed and served on particular issues, such as the circumstances in which a Will was prepared or executed. Each of these procedures is amenable to case management principles.
In Re Estates Brooker-Pain and Soulos [2019] NSWSC 671, Lindsay J stated that while Larke v Nugus requests may be well-intentioned, there are a number of impediments to their implementation in practice.
Fuda v Dawes [2026] NSWSC 360 is likely to result in increased use of preliminary discovery applications where a Larke v Nugus request has been ignored or only partial information provided. A Rule 5.3 application provides a binding court process that requires the production of relevant documents where statutory criteria are met . The decision demonstrates that an uncooperative executor or solicitor does not preclude further investigation. The Court may compel disclosure where the information is reasonably necessary to determine whether proceedings should be commenced.
Relevance of Practice Note SC Eq 7
The executor argued that Practice Note SC Eq 7, which governs subpoenas and document production in probate proceedings, weighed against making the sought orders.
Justice Bennett acknowledged the relevance of the Practice Note but observed that practice notes guide the administration of proceedings and do not override statutory powe . In this case, the Court concluded that the interests of justice justified an order for preliminary discovery despite the ordinary procedural framework.
The decision confirms that Practice Note SC Eq 7 supports disciplined case management but does not prevent the Court from exercising its powers under rule 5.3 where appropriate.
Centrality of the overriding purpose
Fuda v Dawes [2026] NSWSC 360 emphasised the overriding purpose in section 56 of the Civil Procedure Act 2005 (NSW): facilitating the just, quick and inexpensive resolution of the real issues in dispute. Preliminary discovery was regarded as a mechanism for resolving uncertainty at an early stage. Access to the solicitor’s file before proceedings enabled the plaintiff to make an informed decision and avoid unnecessary probate litigation.
Practical implications for succession practitioners
The decision offers several practical lessons:
- Preliminary discovery should be considered where solicitor’s’s file is critical to assessing the merits of a probate challenge.
- An unsigned draft Will should not be assumed to constitute sufficient evidence of an earlier executed Will.
- Solicitor files may be relevant both to establishing a claim and to evaluating potential defences.
- Larke v Nugus requests should be used in the first instance where appropriate, but they are not compulsory and may require supplementation by court-ordered disclosure.
- Requests should be tailored to clearly identifiable categories of documents and demonstrate why they are reasonably necessary to decide whether to commence proceedings.
Fuda v Dawes contributes to the developing authority on preliminary discovery in probate litigati . The decision confirms that rule 5.3 is an effective mechanism for resolving evidentiary uncertainty before substantive litigation begins. In Muscat v Qin [2024] NSWSC 113, McGrath J discussed the principles that have emerged in recent years regarding rule 5.3 His Honour identified the starting point in the authorities as the judgment in O’Connor v O’Connor [2018] NSWCA 214 by Simpson AJA (McColl and Macfarlan JJA agreeing) at [21], where five elements were identified (at [20]):
r 5.3(1) comprises multiple elements which the applicant for such an order must demonstrate, namely that:
(1) the applicant may be entitled to make a claim for relief from the court against the prospective defendant;
(2) the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings;
(3) having made reasonable enquiries, the applicant is unable to obtain sufficient information to make the decision whether or not to commence proceedings;
(4) the prospective defendant may have or have had possession of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief; and
(5) inspection of such a document would assist the applicant to make the decision whether or not to commence proceedings.
Where thsolicitor’s’s Will file is essential to assessing the viability of a probate challenge and informal requests have not succeeded, preliminary discovery may be the most effective procedural st . Used appropriately, it advances the overriding purpose of civil procedure by ensuring that contested probate proceedings are commenced only when justified by the available evidence.
Muscat v Qin and Fuda v Dawes: Guidance on Preliminary Discovery in Probate Litigation
The decision in Fuda v Dawes should be considered with Muscat v Qin [2024] NSWSC 1 . Together, these cases provide succession practitioners with practical guidance for obtaining preliminary discovery under rule 5.3 of the Uniform Civil Procedure Rules 2005 (NSW).
In Muscat, Justice McGrath identified five requirements for preliminary discovery:
(1) the applicant must demonstrate a possible claim for relief, which is a low threshold and does not require a prima facie case but must be supported by evidence;
(2) reasonable enquiries must have been made;
(3) the applicant must still lack sufficient information to decide whether to commence proceedings;
(4) the prospective defendant must have possession, custody, or control of relevant documents; and
(5) inspection of those documents must assist the applicant in deciding whether to commence litigation.
Fuda demonstrates how these principles operate in proba . Justice Bennett applied each of the Muscat requirements before ordering the production of thdeceased’s’solicitor’s’s Will fil . The plaintiff had made extensive enquiries, including seeking information from the solicitors, but was unable to determine whether an earlier executed Will existed, whether it reflected the terms of an unsigned draft, or whether its destruction affected the validity of the later Wi . These uncertainties prevented her from making a responsible decision about whether to seek revocation of the probate grant.
Her Honour also recognised that solicitor files are not merely administrative recor They oftenen contaicontemporaneousus evidence that determines the outcome of probate litigati . Attendance notes, testamentary instructions, draft wills, correspondence, capacity assessments, execution checklists, and file notes explaining changes between successive wills frequently provide the most reliable evidence of testamentary capacity, knowledge and approval, suspicious circumstances, or the existence and revocation of earlier testamentary instruments.
Fuda confirms that preliminary discovery is not limited to gathering evidence to support a claim. Rule 5.3 also enables an applicant to obtain documents relevant to the evaluation of likely defences available to an executor or propound . In probate, this may include evidence of testamentary capacity despite a dementia diagnosis, explanations for suspicious circumstances, or proof that an earlier Will was validly revok . The purpose of preliminary discovery is to facilitate informed decision-making, not only to build plaintiff’s’s case.
Read together, Muscat and Fuda demonstrate that Rule 5.3 is intended to reduce speculative litigati . Where critical evidence remains exclusively with the executor or thdeceased’s’s solicitors, an applicant should not be required to abandon a potentially meritorious claim or commence proceedings without complete informati . Preliminary discovery enables the Court to address evidentiary gaps at an early stage, consistent with the overriding purpose in section 56 of the Civil Procedure Act 2005 (NSW).
Where solicitor’s’s Will file is likely to contain evidence relevant to testamentary capacity, knowledge and approval, undue influence, revocation, or the existence of an earlier Will, an application under rule 5.3 may be the most effective procedural step before challenging a grant of proba . Following Muscat and Fuda, preliminary discovery should be regarded as an integral part of probate case management rather than an exceptional remedy.
In Fuda v Dawes (No 2) [2026] NSWSC 492, Bennett J held that generally costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: UCPR r 42.1. Section 98(1) of the Civil Procedure Act 2005 (NSW) (CPA) confers a broad discretion on the Court in relation to costs, though that discretion is to be exercised judicially: Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218 (Stern and Ball JJA, Griffiths AJA); Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [136] (McColl JA, Sackville AJA and Adamson J agreeing).
Whether a costs order departing from the general rule should be made depends on the circumstances of the case, viewed against the Court’s wide discretionary powers, which powers should be liberally construed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [8] (Beazley, McColl and Basten JJA); State of New South Wales v Stanley [2007] NSWCA 330 at [18] (Hislop J, Beazley and Tobias JJA agreeing). Having regard to the circumstances of this case, and in light of the Court’s wide discretionary powers, I see no reason why costs should not follow the event. The defendant to the application did not seek to make any submissions to the contrary.
Her Honour accepted the defendant’s submission that the terms of r 42.25 are also relevant to the Court’s consideration of the appropriate order to be made in relation to the defendant. Accepting the submission that the defendant has not acted in their own self-interest or otherwise acted dishonestly. I accept they have acted to protect the interests of the estate generally and the beneficiaries in particular; noting that the defendant is only a 25% beneficiary under the 2019 Will. Even though the defendant opposed the application for preliminary discovery, and was unsuccessful, Bennet J is not of the view that the defendants actions were unreasonable.
There is no good discretionary reason the plaintiff should not be granted the relief sought. Her Honour ordered that the defendant provide the plaintiff with preliminary discovery.
Costs: Fuda v Dawes (No 2) [2026] NSWSC 492
Her Honour did not accept the submission that the application was “groundbreaking”, I do accept that there was certainly some novelty in it, which is perhaps best understood in the context of the unusual circumstances of this case. In summary, Bennett J was satisfied that the defendant acted reasonably, and has not, in substance, acted for her own benefit rather than the benefit of the estate. Therefore, the defendant is entitled to costs on an indemnity basis to be paid out of the deceased’s estate. The defendant be indemnified by the estate of the deceased in respect of the costs payable to the plaintiff.
In Fuda v Dawes (No 2) [2026] NSWSC 492, Bennett J held that generally costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: UCPR r 42.1. Section 98(1) of the Civil Procedure Act 2005 (NSW) (CPA) confers a broad discretion on the Court in relation to costs, though that discretion is to be exercised judicially: Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218 (Stern and Ball JJA, Griffiths AJA); Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [136] (McColl JA, Sackville AJA and Adamson J agreeing).
Whether a costs order departing from the general rule should be made depends on the circumstances of the case, viewed against the Court’s wide discretionary powers, which powers should be liberally construed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [8] (Beazley, McColl and Basten JJA); State of New South Wales v Stanley [2007] NSWCA 330 at [18] (Hislop J, Beazley and Tobias JJA agreeing). Having regard to the circumstances of this case, and in light of the Court’s wide discretionary powers, I see no reason why costs should not follow the event. The defendant to the application did not seek to make any submissions to the contrary.
Her Honour accepted the defendant’s submission that the terms of r 42.25 are also relevant to the Court’s consideration of the appropriate order to be made in relation to the defendant. Accepting the submission that the defendant has not acted in their own self-interest or otherwise acted dishonestly. I accept they have acted to protect the interests of the estate generally and the beneficiaries in particular; noting that the defendant is only a 25% beneficiary under the 2019 Will. Even though the defendant opposed the application for preliminary discovery, and was unsuccessful, Bennet J is not of the view that the defendant was unreasonable in doing so.
In Fuda v Dawes [2026] NSWSC 360, her Honour found that the circumstances of the case are somewhat unusual. They have prevented the plaintiff from even confirming that there is, in fact, a valid Will for her to propound in the alternative to the 2019 Will. But the plaintiff also does not know at this early stage whether she even has a viable claim to impeach the 2019 Will. Bennett J was satisfied that the plaintiff satisfied all five O’Connor limbs:
- she may be entitled to make a claim against the defendant (who is the prospective defendant);
- she made reasonable enquiries to obtain sufficient information to decide whether to commence proceedings;
- having made reasonable enquiries, she was unable to obtain sufficient information to make the decision as to whether to commence proceedings;
- the defendant has possession of documents which could assist in determining whether the plaintiff is entitled to make a claim for relief, being those identified in the Summons; and
- inspection of the class of documents identified in the Summons would assist the plaintiff in deciding whether she should commence proceedings.
There is no good discretionary reason the plaintiff should not be granted the relief she seeks. Her Honour ordered that the defendant provide the plaintiff with preliminary discovery.
Her Honour did not accept the submission that the application was “groundbreaking”, although there was certainly some novelty in it, which is perhaps best understood in the context of the unusual circumstances. In summary, Bennett J was satisfied that the defendant acted reasonably, and has not, in substance, acted for her own benefit rather than the benefit of the estate. Therefore, the defendant is entitled to costs on an indemnity basis to be paid out of the deceased’s estate. The defendant be indemnified by the estate of the deceased in respect of the costs payable to the plaintiff.