Sullivan v Sullivan

The interesting aspect of this case arose because the applicant, a beneficiary under the will of his late mother, in the course of contesting its validity, also sought an order pursuant to r 640 Uniform Civil Procedure Rules 1999 that his sister, the executor, bring the grant of probate into the Registry and commence an application for probate of the will in solemn form. In this decision, Davis J considered the test under r 640 and specifically whether showing a triable issue as to the validity of the will granted probate in common form is the correct approach. The court provided valuable guidance in this regard. Justice Davis held that the applicant was entitled to the relief sought under r 640.

Davis J

14 February 2025

The testator made a will in 2019 under which her estate was to be left to her three children (the applicant and first to third respondents) in equal shares. [3]. Subsequently in 2023 she made another will which differed markedly from her previous will. [5]. The second respondent as executor obtained probate in common form of the 2023 will. [7]. Following that, the applicant, a beneficiary under both wills, contested the validity of the 2023 will. [8]. In addition, he sought an order pursuant to r 640 Uniform Civil Procedure Rules 1999 (“UCPR”) that the second respondent be compelled to:

(1)bring the grant of probate into the Registry; and

(2)commence an application for probate of the 2023 will in solemn form. [11].

Rule 640 contains a procedure whereby a party can challenge a will even though probate in common form has already been granted.

Rule 640 does not prescribe the considerations which need to be taken into account in exercising the discretion to order that the grant of probate be brought into court.

The applicant contended that the testator had lacked capacity to make the will, or alternatively had not approved it. He bore the burden of persuasion. [49]–[50]. Meanwhile, the second respondent had the benefit of a common form grant and bore the onus of proving capacity, knowledge and approval. [50].

Consideration of the test under r 640 UCPR 

In considering whether to exercise the discretion under r 640 in the applicant’s favour, his Honour examined previous authority including Aronis v Aronis [2019] QSC 292 and Re Uscinski [2024] QSC 131, [5], noting the courts’ previous inclination to adopt the triable issue approach as to the question of whether validity of the will has been established. [52]–[55]. His Honour also saw merit in that approach, expressing the view that the demonstration of a triable issue is a “powerful consideration”. [55].

Justice Davis held as follows:

“Rule 640, on its face, leaves the discretion at large. There are no express fetters to the discretion and no expressly prescribed considerations relevant to its exercise. However, no judicial discretion is unfettered. Its exercise is confined to the attainment of the objects for which the power has been granted. The ascertainment of purpose is a question of construction of the rule and that requires the determination of the meaning of the words used taken against relevant context, which includes historical context” (footnotes omitted). [56].

… [t[he point of a proceeding seeking a grant of probate in solemn form is to determine the validity of the will in circumstances where validity is doubted. In the absence of evidence of a prospect of the will being invalid, it is pointless to require the will to be proved in solemn form. There may be many different considerations which are relevant to the exercise of the discretion under r 640 in particular cases and each case will turn on its merits. However, given the obvious purpose of r 640 discerned against a long history of probate practice, it would in my view be a rare case where the discretion under r 640 was exercised in favour of a challenging party who did not adduce evidence of a triable issue on some question affecting the validity of the will. Further, there may be cases where factors exist which lead to the exercise of discretion against the challenging party even though that party shows a triable issue as to the validity of the will. Those cases, though, might be rare.” [57].

Disposition

Given the available evidence demonstrated that questions existed as to the validity of the will which ought properly to be decided upon proceedings for a grant of probate in solemn form, the applicant was granted the relief sought under r 640. [58].

A Jarro