In New South Wales civil proceedings, an application to strike out a Defence or a Statement of Cross-Claim is governed by Rule 14.28 of the Uniform Civil Procedure Rules 2005 (UCPR).
When the Court May Strike Out Pleadings
Under UCPR r 14.28, the court can order that the whole or any part of a pleading (such as a defence or cross-claim) be struck out if it:
- Discloses no reasonable cause of action or defence or other appropriate case.
- Has a tendency to cause prejudice, embarrassment, or delay in the proceedings (e.g., vague, overly long, or mixing factual assertions with argumentative commentary).
- Is an abuse of the process of the court (e.g., vexatious, re-litigating settled matters, or brought in bad faith).
Key Principles for Strike-Out Applications
- Discretionary Power: Courts exercise strike-out orders sparingly, generally limiting them to clear and hopeless cases.
- Leave to Re-plead: Where a pleading is struck out for technical deficiencies or lack of particulars, rather than being fundamentally untenable, courts commonly grant leave to re-plead within a specified period.
- Evidence: The court may receive evidence during the hearing of a strike-out application.
- Alternative or Companion Applications: Strike-out motions are frequently combined with applications for summary judgment under UCPR r 13.1 or summary dismissal under UCPR r 13.4 where appropriate.
In Wright v The Estate of Hanger [2026] NSWSC 1403 the Supreme Court of New South Wales considered whether a probate challenge could proceed where the objecting beneficiary had not identified facts capable of establishing suspicious circumstances concerning the Will’s execution. The proceedings also considered the Court’s power to order DNA testing to determine whether a claimant was the deceased’s biological child.
Justice Scruby struck out the defence and cross-claims, permitting the probate application to proceed unopposed. His Honour then considered whether DNA testing was necessary to determine Ms Wright’s eligibility for family provision. His Honour ordered DNA testing to assist in establishing whether Ms Wright was the deceased’s biological child, relevant to her status as an eligible person under the Succession Act.
Practical Considerations: Will Drafting
The decision highlights several practical considerations for practitioners. Where a beneficiary’s entitlement is conditional on DNA evidence or proof of parentage, clearly explain these conditions to the testator, carefully document, and effectively communicate them to relevant parties. Practical steps may include drafting a specific clause in the Will that outlines the DNA condition in plain terms, such as:
“My gift to [beneficiary’s name] is conditional upon the executor receiving satisfactory DNA evidence that confirms [beneficiary] is my biological child.”
It is best practice to record the testator’s specific instructions and reasoning for including such a condition in a detailed file note during the Will drafting conference, as well as to confirm these instructions in correspondence to the testator.
Additionally, advise the testator to inform affected beneficiaries of any such conditions to avoid disputes and provide all parties with clear written summaries of the DNA requirement and the process for compliance. This approach can help ensure the testator’s intentions are respected and reduce the risk of future challenges.
Prepare to facilitate compliance with conditions set out in the Will, including seeking court directions or orders for DNA testing if the evidentiary requirement is contested or unclear. Where the validity of DNA evidence, the identity of the parties required to participate, or the chain of custody is disputed, the executor may apply for directions from the Court or seek interim orders to ensure proper procedure and to resolve uncertainty efficiently. Prompt action in seeking guidance can assist in minimising delay and avoiding further complications.
Wright v The Estate of Hanger also emphasises the need for specific, facyually supported grounds for probate challenge pleadings. Speculative or unsupported allegations concerning Will validity or DNA conditions are unlikely to survive a strike-out application and may attract adverse costs orders. Early assessment of available evidence and prospects of success remain essential when advising on probate challenges.
Probate Caveat
A probate caveat ensures that estate assets aren’t transferred or distributed under probate or administration until specific concerns have been resolved and the court is satisfied the Will is valid, and the right person is appointed to manage the estate. Situations where a probate caveat can be appropriate include concerns about testamentary capacity, allegations of undue influence or duress, doubts about whether the Will was properly signed and witnessed, disputes over who should apply for probate, or questions about which of multiple Wills is the most recent valid document.
Lodging a probate caveat in NSW requires a relevant basis to lodge a caveat. Common grounds include:
- Lack of testamentary capacity at the time the Will was made.
- Undue influence or coercion.
- Fraud.
- Lack of knowledge and approval of the contents of the Will.
- Improper execution or witnessing under NSW requirements.
- Forgery.
Ms Wright challenged the 2021 Will by lodging a probate caveat. The caveat expired, but its existence prompted the executor to commence proceedings for probate in solemn form.
Ms Wright filed a defence and cross-claims opposing probate. The executor applied to strike out those pleadings on the basis that they disclosed no reasonably arguable ground for challenging the Will.
The challenge to the Will
Ms Wright’s primary concern was the requirement to establish her biological relationship with the deceased as a condition of her entitlement. Submitting her provision of DNA test results to the deceased in 2016 and the deceased’s acceptance of Ms Wright as his daughter – questioning the necessity for further proof of paternity.
Ms Wright also relied on correspondence in which the executor asked the solicitor whether her entitlement could be made conditional on DNA confirmation contending that they raised questions as to whether the condition reflected the deceased’s testamentary intentions. Also noting alleged inaccuracies concerning the deceased’s family relationships and information recorded on his death certificate. The central issue was whether these matters provided an arguable basis for disputing the deceased’s knowledge and approval of the 2021 Will.
Knowledge and approval: the significance of suspicious circumstances
The Court referred to the principles discussed in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285. Where a testator with testamentary capacity duly executes a rational Will, a presumption ordinarily arises that the testator knew and approved its contents. Evidence of suspicious circumstances may displace that presumption and require the propounder of the Will to establish knowledge and approval affirmatively. However, suspicion must be supported by circumstances capable of raising a genuine question about the testator’s understanding or approval.
In Wright v The Estate of Hanger, Ms Wright did not dispute that the deceased possessed testamentary capacity or that the Will had been properly executed. The challenge centred on whether the circumstances surrounding the DNA condition were sufficiently suspicious to justify further investigation. Justice Scruby concluded they were not.
The solicitor’s evidence
The solicitor responsible for preparing the 2021 Will provided affidavit evidence concerning the deceased’s instructions and the circumstances of execution. The solicitor had conducted an initial conference with the deceased on 23 November 2021, during which the proposed beneficiaries and Ms Wright’s position were discussed. The deceased initially wished to exclude Ms Wright. Following discussion about potential family provision proceedings, the will provided her with a conditional 10% entitlement. The solicitor subsequently prepared the Will and attended a further meeting at which the deceased executed it.
The will was signed in the executor’s absence.
The solicitor’s evidence was that the deceased understood the nature and effect of the document, appreciated the proposed distribution, and had not been subjected to pressure.
The Court regarded this evidence as significant. The Will was straightforward, its provisions had been discussed with the deceased, and the distribution reflected a rational explanation for his testamentary decisions. The executor’s suggestion of the DNA condition did not establish that the deceased failed to understand or approve it.
Ms Wright’s assertion that the deceased had previously accepted her paternity did not necessarily make the condition suspicious. His Honour observed that several explanations for the requirement were possible, including that the deceased may have wished the executor and other beneficiaries to receive independent confirmation of the relationship.
Even accepting Ms Wright’s account of earlier DNA testing, the circumstances did not establish an arguable lack of knowledge and approval.
Why the defence and cross-claims were struck out
The Court found that Ms Wright’s defence declined to admit the validity of the Will and required strict proof. It did not identify facts capable of establishing testamentary incapacity, undue influence, suspicious circumstances or any recognised ground for denying probate. Ms Wrights cross-claim sought interlocutory orders but did not advance an alternative testamentary instrument or disclose a substantive cause of action capable of defeating the probate application.
Justice Scruby accepted that the pleadings be struck out under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). Wright v The Estate of Hanger demonstrates the importance of articulating clear, factually supported grounds when drafting or challenging pleadings. Speculative or unsupported objections are unlikely to withstand a strike-out application. Practitioners should ensure that pleadings in probate disputes set out specific facts and recognised legal grounds, are supported by evidence, and avoid vague or argumentative content. Regular review of pleadings against legal requirements and provision of particulars for relied-upon facts is essential.
His Honour also considered whether Ms Wright should be given another opportunity to amend her pleadings. Although self-represented, Ms Wright had made extensive written and oral submissions and had already amended her cross-claim. Nothing in those submissions suggested that a properly formulated challenge to the Will could succeed.
Further delay would increase costs for an estate of modest value.
As the estate value was modest allowing further amendments would not advance the overriding purpose of achieving the just, quick and cheap resolution of proceedings. The defence and both cross-claims were therefore struck out.
Probate in common form
His Honour addressed the appropriate procedural course following dismissal of the challenge. The executor commenced proceedings for probate in solemn form because Ms Wright’s caveat had expired, and the Court was satisfied there was no proper basis for continuing to oppose probate. Scruby J directed that the application be referred to the Registrar for determination as an undefended application for probate in common form. The Court relied on the procedural flexibility available under s 14 of the Civil Procedure Act 2005 (NSW) avoiding further procedural steps and additional expense. The Court did not need to determine the executor’s alternative request for an interim administration grant permitting sale of the Moorebank property.
DNA testing and family provision eligibility
Although the probate challenge was unsuccessful, a separate issue remained regarding Ms Wright’s entitlement to seek family provision. Under s 57 of the Succession Act 2006 (NSW), a child of a deceased person is an eligible person who may apply for family provision. Ms Wright’s biological relationship with the deceased was disputed. Establishing that relationship was relevant to her eligibility in the family provision proceedings. The executor sought orders under s 26 of the Status of Children Act 1996 (NSW) requiring DNA testing.
Justice Scruby distinguished between the two proceedings. Once the defence and cross-claims were struck out, parentage was no longer an issue in the probate proceedings. It remained directly relevant to the family provision claim. The statutory threshold for ordering parentage testing was therefore satisfied. Ms Wright objected to testing unless Kelly Dimmock was also required to participate. Submitting that samples from all three individuals were necessary to establish the relevant biological relationships. His Honour found no evidentiary basis for concluding that testing could not proceed without an order requiring Ms Dimmock’s participation. The appropriate testing requirements were matters for the laboratory. Ms Dimmock had also indicated a willingness to participate voluntarily.
Justice Scruby ordered Ms Wright and Brett Hanger to undergo accredited DNA testing by cheek swab, subject to the procedural requirements of the Status of Children Regulation 2026 (NSW). The costs of testing and reasonable attendance expenses were ordered to be paid from the estate. The testing order was intended to assist in resolving the question of Ms Wright’s eligibility to pursue family provision. It did not determine whether she would ultimately receive further provision.
Costs
Justice Scruby considered that the executor’s success in challenging the pleadings justified an order for costs against Ms Wright. The formal orders provided for further written submissions concerning the costs of the notice of motion, with the issue to be determined on the papers if appropriate. The executor was also entitled to indemnification from the deceased’s estate in respect of the costs of the motion.
Wright v The Estate of Hanger highlights the financial risks associated with pursuing an unsubstantiated probate challenge, especially in estates with limited assets. Costs orders can have a significant impact on the parties, as the unsuccessful party is often required to pay not only their own legal expenses but also the other side’s costs. For self-represented litigants, adverse costs orders can be particularly burdensome, potentially resulting in liability for substantial sums. These risks may discourage weak or speculative litigation and emphasise the importance of carefully evaluating the merits of a case before commencing or continuing proceedings.
Practitioners can help clients manage or mitigate these risks by implementing practical risk mitigation strategies. Including conducting a preliminary assessment of the strength of the claim using structured cost-benefit analysis tools or checklists. For example, adopting a pre-litigation checklist that covers factual evidence, recognised legal grounds, and potential adverse costs can assist in making informed decisions about proceeding. Where costs risks are significant, practitioners should recommend and facilitate discussions around alternatives such as mediation or settlement conferences at an early stage.
Preparing written advice that clearly outlines both the prospects of success and the risk of costs orders can further empower clients to understand the consequences of their choices. Maintaining clear communication and thorough documentation of legal advice, including a record of discussions about settlement options and costs exposure, can also help avoid unnecessary or costly litigation and support effective decision-making. Providing clients with examples of cost risk management tools or access to mediation services can serve as valuable resources in protecting their interests.
Key lessons from the decision
Wright v The Estate of Hanger sets out several key principles relevant to probate and estate litigation.
First, mere disagreement with a testamentary decision does not justify a probate challenge. The opponent must identify facts supporting a recognised legal ground of invalidity.
Secondly, establishing suspicious circumstances requires more than speculation. Beneficiary involvement in will preparation communications alone does not demonstrate lack of knowledge and approval by the testator.
Thirdly, contemporaneous solicitor records may be decisive. File notes, correspondence and evidence of discussions with the testator can demonstrate that the Will reflected the testator’s independent intentions.
Fourthly, the Court may limit unmeritorious probate disputes to prevent unnecessary depletion of estate assets. The opportunity to amend pleadings is not unlimited, especially where extensive submissions have not disclosed a sustainable challenge.
Finally, probate validity and family provision eligibility are distinct.
A Will may be admitted to probate even if a dispute about a claimant’s parentage remains unresolved. Parentage testing may be ordered where biological relationship is relevant to family provision eligibility.
Conclusion
Wright v The Estate of Hanger reinforces the distinction between questioning the fairness or wisdom of a testamentary provision and establishing a legal ground for challenging a Will’s validity.
The Court was satisfied that the deceased’s 2021 Will had been prepared and executed in circumstances that did not disclose an arguable basis for challenging his knowledge and approval.
The probate dispute concluded, while the separate issue of Ms Wright’s eligibility for family provision remained subject to DNA testing.
For practitioners, the case highlights the importance of careful will-drafting, contemporaneous records of testamentary instructions, and independent confirmation of the testator’s understanding of contentious provisions.
Where a Will includes a DNA condition, express the condition in clear and unambiguous terms. For example, consider including a clause such as: “My gift to [beneficiary’s name] is conditional upon the executor receiving DNA evidence, to the executor’s satisfaction, that confirms [beneficiary] is my biological child.” Practitioners should adapt this wording as appropriate for their client’s circumstances and ensure the testator’s intentions are recorded accurately.
A File note recording the testator’s reasoning and any discussions about genetic testing requirements.
Clear documentation of the testator’s instructions may assist in resolving disputes about testamentary intention and support the validity of the Will if challenged.
Importance of identifying the precise legal issue in dispute.
Common legal issues arising in probate disputes include: testamentary capacity, knowledge and approval, undue influence, improper execution, forgery, and suspicious circumstances. Other issues may relate to family provision claims, disputes over identification of beneficiaries, interpretation of Will terms, or allegations of fraud or mistake.
Distinguishing between challenges to a Will’s validity (such as lack of capacity or undue influence) and disputes concerning the administration or interpretation of the estate. Careful issue identification assists in focusing pleadings, gathering relevant evidence, and providing precise legal advice. Clearly outlining the specific legal ground ensures that challenges are properly supported and that unmeritorious arguments are avoided.
A question about a beneficiary’s parentage does not necessarily affect Will validity, even where entitlement is conditional on proof of relationship.