Narciso v Narciso & Ors [2026] SASCA 99 confirms that dissatisfaction with a deceased person’s arrangements does not, on its own, justify a challenge to a Will or an inter vivos property transfer. An applicant must establish standing, articulate a legally sustainable claim, provide supporting evidence, and show that the proceedings could result in a practical benefit.
The deceased’s estate planning arrangements
Ida Narciso (the deceased) died on 18 November 2022. Juan Domingo Narciso (the applicant), Carlos Antonio Narciso (the first respondent), and Angelo Narciso (Angelo) are the deceased’s surviving children. Anne-Marie Louise Narciso (the second respondent) and Jennifer Chelsea Narciso (the third respondent) are the deceased’s grandchildren.
On 24 October 2019, the deceased executed an enduring power of attorney appointing the first and second respondents jointly and severally as her attorneys (POA).
In January 2020, the deceased made a Will. On 15 September 2020, the deceased made another Will, revoking previous Wills and appointing the Public Trustee (the fourth respondent) as her executor, trustee, and administrator of her estate. The Will provided that if, at the date of the deceased’s death, they were not the registered owner of a domestic residence, 45 per cent of the deceased’s estate was to pass to the first respondent, 45 per cent to Angelo, and 10 per cent to the second respondent.
Transfer of property
On 23 November 2021, the deceased transferred the residential property they owned at Paralowie (the property) to the second and third respondents, in consideration of a payment of $250,000 (the transfer). The transfer price was the subject of an independent valuation, which estimated the property’s market value at $280,000.
Following the deceased’s death, the applicant commenced proceedings seeking to
- invalidate the power of attorney,
- set aside the property transfer and
- challenge the Will.
Additionally, the applicant sought permission to bring a family provision claim.
Procedural fairness
English is not the applicant’s first language; the appeal was conducted through a Spanish interpreter. Additionally, the applicant is self-represented. In considering these circumstances, the Court ensured that procedural fairness was afforded to the applicant by providing interpreter services and allowing them to present their case. There was no indication that the applicant’s language barrier or lack of legal representation prevented full participation in the proceedings or affected the determination of the case.
The Court also explicitly took into account the applicant’s financial hardship in its consideration of the proceedings. However, the Court made clear that procedural fairness considerations do not alter the substantive outcome when the legal claims themselves lack merit.
Narciso v Narciso & Ors [2026] SASCA 99 demonstrates that, while courts take steps to ensure equal access and fair treatment for parties facing language or financial barriers, such factors alone do not constitute sufficient evidence or legal basis for a successful claim. Advising clients that procedural fairness safeguards ensure a fair process, but do not provide an advantage if the underlying claims are not legally sustainable.
The parties agree that Stanley JA should proceed to decide the application on the assumption that the applicant suffers financial hardship. The respondents seek an order dismissing the appeal on summary grounds, or, in the alternative, an order for security for costs for $16,500 (inclusive of GST). The respondents contend that the application should be dismissed on the basis that the cause of action is out of time, and that the Court should not grant an extension of time because the proceedings lack merit.
The Court summarily dismissed the proceedings. The applicant lodged an appeal after the 11 May 2026 deadline, filing on 25 May 2026.
A series of interdependent claims
The applicant’s proposed claims were contingent on the success of multiple preceding legal steps.
The applicant first needed to set aside the property transfer to restore the property or its value to the estate. As the Public Trustee determined there was no worthwhile cause of action, the appointment of an independent administrator would be required to pursue the claim.
Seeking the appointment of an independent administrator, the applicant would need to apply to the Court, demonstrating that an administrator other than the executor named in the Will is necessary, typically because the executor is unwilling or unable to act or has a conflict of interest.
The Court may grant such an application if satisfied that doing so is in the interests of the proper administration of the estate. This is a significant procedural step, and appropriate evidence and justification must be provided to support the application.
The applicant would then need to have the September 2020 Will invalidated. However, this would not necessarily benefit the applicant, as the January 2020 Will made no provision for them. No earlier Will was identified under which the applicant was a beneficiary, and it was not established that intestacy would apply.
If the applicant had succeeded in invalidating all known Wills and the estate had failed to be distributed on intestacy, the relevant statutory rules would have applied. In such a situation, as a surviving child, the applicant might have been entitled to a share of the estate. However, given the estate’s insolvency and the absence of any unaccounted-for assets, even distribution under intestacy would not have produced any practical benefit.
Finally, the applicant would need to succeed in a family provision claim.
Each stage would require additional proceedings, incurring further costs and uncertainty.
The Court found that this sequence of dependencies demonstrated a fundamental lack of practical utility in the case.
Standing to challenge the Will
A person challenging a Will must show that their rights would, or might, be affected if the challenged Will were found to be invalid.
Gardiner v Hughes [2017] VSCA 167; 54 VR 394 clarified the legal standing required to apply for the revocation of a grant of probate: an applicant may lack standing where an earlier, undisputed Will would operate if the later Will were set aside, but would confer no benefit on the applicant.
The deceased’s known Wills excluded the applicant and did not identify any alternative testamentary instrument that would benefit them. Setting aside the September 2020 Will would not necessarily improve the applicant’s legal position.
Nor could the applicant pursue an estate cause of action in his own name. Ordinarily, responsibility for recovering estate property rests with the executor or administrator. Although a beneficiary may sometimes commence proceedings where an executor or trustee refuses to act, that course is generally confined to special or exceptional circumstances.
The applicant was not a beneficiary under either Will and did not establish any exceptional circumstances permitting a claim to personal property.
The evidence supported capacity, knowledge, and approval.
The applicant alleged lack of capacity, insufficient English proficiency, and undue influence. However, contemporaneous evidence supported the contrary position.
The available records included:
- medical evidence that the deceased had no cognitive impairment and was capable of making her own decisions;
- a doctor’s assessment describing the deceased as having good memory and judgment and as being free from undue influence;
- execution clauses recording that the Wills had been read in English and Spanish;
- file notes confirming that a Spanish interpreter attended when the deceased gave instructions and when the September 2020 Will was executed;
- detailed instructions explaining the deceased’s reasons for excluding the plaintiff; and
- evidence that the executor transferred the property for an amount reasonably close to its independently assessed market value.
The evidence also recorded rational reasons for Ida’s testamentary choices. She described Carlos as the child who did everything for her and referred to her estrangement from Juan, his drug use and the difficulties in their relationship.
In contrast to the contemporaneous evidence, the appellant relied primarily on personal opinion, speculation, and unsupported allegations. The applicant submitted no medical evidence to establish lack of testamentary capacity at the relevant times. Emphasised that bare allegations do not create a reasonably arguable probate claim, particularly where the solicitor’s file notes contain detailed evidence of capacity, translation, instructions and due execution.
An estate with no assets
The Public Trustee’s investigation found the estate comprised approximately $5,000 in a bank account and a $380 refund from a residential aged-care facility. Funeral expenses exceeded these assets, rendering the estate insolvent.
Even if the property transfer were set aside, the costs of appointing an administrator, obtaining a grant, investigating the transaction, seeking judicial advice, and conducting further proceedings would likely consume most or all of the recovered value.
For example, if the property recovered were valued at $250,000, but the combined legal fees, court costs, estate administration expenses, and other outlays were likely to total $240,000 or more, very little would remain for distribution. In many cases, costs can even exceed the value of the asset recovered, leaving beneficiaries with no meaningful benefit and sometimes out of pocket. This underscores the importance of a systematic cost-benefit analysis at the outset.
Practitioners
To support this assessment in practice, practitioners can use basic tools such as cost-estimation spreadsheets or simple checklists to list and total anticipated court fees, legal costs, expert witness fees, and administrative expenses. Comparing these estimated outlays to the likely value of assets at each stage helps clients to visualise potential outcomes.
In more complex matters, practitioners may recommend seeking preliminary costs advice from barristers or accountants, or utilising online litigation cost calculators where available. Gathering comparative data on likely awards or recoveries from similar past cases can further inform this analysis.
Practitioners for every potential estate dispute assist clients to:
(1) identify the maximum potential assets recoverable through litigation,
(2) estimate all financial outlays including legal fees, court costs, and estate administration expenses,
(3) consider the likelihood of success at each critical stage of the proceedings, and
(4) weigh the risk that costs may outweigh any benefit.
By rigorously quantifying these factors before issuing proceedings, both practitioners and clients can make informed decisions and avoid litigation that is unlikely to produce a meaningful practical benefit.
The Court also considered the practical circumstances surrounding the transfer. A mortgage had been discharged, and money had been spent constructing a granny flat for Ida. The recipients had provided care and support to her, while Juan had been estranged from her.
Legal costs were likely to be disproportionate to any potential recovery. The applicant had previously received advice that the expense of litigation could outweigh any benefit, but remained determined to proceed.
The Court observed that litigation cannot be maintained solely to facilitate judicial investigation. A party must plead a recognised cause of action, establish standing, and provide evidence supporting the relief sought.
Refusal to extend time
Although the appeal was only 14 days late, the short delay was not decisive. The Court considered the merits of the proposed appeal, the applicant’s financial position, the insolvency of the estate and the prejudice that further proceedings would cause the respondents.
Granting an extension would expose the respondents to additional, likely unrecoverable costs and could further diminish the property’s value. Refusing the extension caused minimal practical prejudice, as the proceedings had no reasonable prospect of financial or legal benefit.
The Court therefore refused the extension of time and dismissed the appeal, with Juan ordered to pay the respondents’ costs.
Practical lessons
Narciso v Narciso & Ors [2026] SASCA 99 illustrates that a Court assessment of a proposed Will challenge is made in light of the full sequence of legal and practical consequences. The case gives clear, actionable lessons for practitioners advising clients about estate litigation. To ensure client matters are approached with the greatest possible effectiveness and efficiency, practitioners should focus on the following key takeaways before commencing proceedings:
- Clearly identify the testamentary instrument that would take effect if the challenged Will were found invalid. Without this step, there is a risk of proceeding without standing or a realistic prospect of benefit.
- Assess whether the applicant would benefit under that instrument or on intestacy. Confirming this upfront prevents unnecessary litigation where the client has no prospect of recovery.
- Confirm who has the authority to administer the estate and pursue estate-related claims.
- If the executor or administrator is unwilling to act, consider whether an application for appointment of an independent administrator is warranted.-
- Gather admissible evidence to support any alleged invalidity, such as incapacity or undue influence.
Contemporaneous medical notes, interpreter records, and instructions are often decisive.
Simple tools like cost-benefit spreadsheets help clients visualise potential outcomes.- Advise on the potential for disproportion between legal costs and any benefit to the client, making it clear that litigation should proceed only if the client is likely to gain a material advantage.
By systematically applying these lessons, practitioners can deliver more effective counsel, focus clients’ attention on the main decision points, and avoid litigation that is unlikely to produce any practical benefit.
Before proceedings are commenced, an applicant should identify:
- the testamentary instrument that would operate if the challenged Will were invalid;
- whether the applicant would benefit under that instrument or on intestacy;
- who has authority to administer the estate and pursue estate causes of action;
- the admissible evidence supporting incapacity, undue influence or another ground of invalidity;
- the assets that could realistically be recovered; and
- whether the likely benefit justifies the cost and complexity of the proceedings.
The decision also reinforces the importance of a well-maintained Will file. Contemporaneous medical assessments, interpreter records, detailed instructions, and clear explanations for excluding a potential claimant provide strong evidence of capacity, knowledge, and approval.
Ultimately, courts resolve legal controversies rather than investigate suspicions. A sincerely held belief in injustice cannot overcome the absence of standing, evidence, estate assets, or practical utility.
A proactive approach for Practitioners is counselling clients whose motivations for litigation may be emotional rather than legal. It is important to engage in frank discussions to clarify the difference between a perceived sense of unfairness and a legally actionable claim. Advice to assist clients to understand that the court process is not designed to remedy every personal grievance, and that persistence based on emotional reasons alone is unlikely to yield a positive outcome. Providing clear, realistic advice about the requirements for a successful claim and the practical limitations posed by issues such as standing, evidentiary burden, and estate insolvency can help manage client expectations and mitigate the risk of futile litigation. Where a client appears motivated primarily by emotion or a desire for vindication, record all advice given about likely prospects and practical benefits, and address alternative avenues for closure or support outside of litigation where appropriate.
The applicant’s proceedings fail to comply with UCPR 82.2 or UCPR 254.4 insofar as they amount to a probate action. The applicant has failed to identify who would administer the deceased’s estate. That is relevant to both the ability to institute family provision proceedings and to standing to set aside the property transfer.
The first step is to institute proceedings either to propound a Will or to seek the appointment of an administrator. Neither step has been taken. The applicant has not identified what he says is the last Will that would apply if the Will he challenges is set aside. In Gardiner v Hughes (2017) 54 VR 394 at [91], the Victorian Court of Appeal set out that where the validity of more than one Will is in issue, an applicant must establish standing by showing that their rights would or might be affected if the grant were to be revoked. The disputed Will were to be found invalid. On the other hand, if there is a prior, undisputed Will under which the applicant would derive no benefit, the applicant lacks standing to challenge the grant made in respect of the later Will. If they argue that there is an earlier Will that applied, but it does not benefit them, then they have no standing to attack the validity of the September 2020 Will.
The second issue concerns the estate’s assets. The applicant effectively contends that a property transferred inter vivos should be returned to the deceased’s estate. It is the duty of the administrator of an estate to call in the assets and to undertake litigation on its behalf. In this case, the Public Trustee, as the executor under the only two wills in evidence, has decided not to bring any proceedings to challenge the validity of the 15 September 2020 Will. The applicant has not sought orders compelling the Public Trustee to take that step. A beneficiary may be able to sue in respect of causes of action otherwise belonging to the trustee or executor in special or exceptional circumstances.
In Ramage v Waclaw (1988) 12 NSLR 84, Powell J summarised the relevant authorities. The starting point is that beneficiaries who could institute proceedings to compel the trustee to perform their duty to protect their interest in property are entitled to do so, and the trustee’s failure to carry out that duty is a breach of trust, giving rise to a cause of action and, if sufficiently serious, grounds for removal. Normally that is the protection. But where a trustee refuses to institute proceedings against a debtor or to recover trust property, the beneficiary may wish to institute proceedings himself, either in his own name or in the name of the trustee. A beneficiary may sue in his own name only where the relief sought is within the equitable jurisdiction of the Court, and even then only where the circumstances are exceptional. If they are not exceptional, the beneficiary’s remedy is to sue the trustee for the execution of the trust and then to apply for the appointment of a receiver and for leave to issue in the name of the trustee of the receiver. See also Woodley v Woodley [2018] WASC 333 at [50]-[51], Wood v McLean (2010) 31 VR 12; [2010] VSC 550; Mataska v Browne [2013] VSC 62; Middleton v O’Neil (1943) 43 SR (NSW) 178.
However, the applicant has not demonstrated why their case would be categorised as involving special or exceptional circumstances There is no conflict of interest in relation to the executor The estate is impecunious Even if Stanley JA set the transfer aside, the litigation costs would exceed any recovery, and the applicant is not a beneficiary Material facts have not been identified to demonstrate that an attack on the Will or an inter vivos transfer has any reasonable prospect of success The evidence on capacity supports rather than contradicts capacity In all the circumstances, the appellant has not demonstrated that he has any reasonable prospects of success on the appeal or action as a whole When combined with the prejudice to the respondents in incurring costs and defending proceedings, where recovery of their costs is unlikely, and the estate is insolvent, any potential benefit to the appellant in pursuing the matter is negligible at best In these circumstances, the appropriate course is to refuse the extension of time and dismiss the appeal.
Stanley JA dismissed the appeal against the order for summary dismissal. The applicant is to pay the respondents’ costs of the application and the action.