What if everybody prefers the second last will? The Court in Probate does not have a Rubber Stamp: Cassarino v Cassarino [2020] NSWSC 454

09 July 2020

In Cassarino v Cassarino [2020] NSWSC 454, the plaintiff and the three defendants were siblings, being children of the deceased. Under the deceased’s 2015 Will, the deceased’s estate was (in effect) divided equally between the four children. However, under the deceased’s later 2016 Will, the deceased left half of his estate to the plaintiff and divided the balance equally between the other 3 children. The plaintiff sought to prove the 2016 Will, whereas the defendants (the other three children) sought to prove the 2015 Will. There was some doubt about the validity of the 2016 Will, but not the 2015 Will.

The parties ultimately settled on terms that they would agree the 2015 Will was valid. Accordingly, they asked the Senior Deputy Registrar to make a grant of probate of the 2015 will in solemn form (meaning once done, it cannot be set aside except in limited circumstances). The Registrar referred it to Justice Hallen to make orders by consent giving effect to the settlement. However despite eventually issuing the grant as requested, Justice Hallen refused to ‘rubber stamp’ the agreement, giving a written judgment illustrating the unique rules, principles and considerations that exist in probate.

Justice Hallen stated that the Court cannot simply pass over a later will merely because the executors and beneficiaries agree, or even where it is an element of the parties’ settlement of a dispute between the validity of 2 wills. Justice Hallen stressed that in order to ‘pass over’ a later will, there must be evidence before the Court that justifies doing so. Earlier decisions make clear this requirement for evidence – the document presented to the Court as the deceased’s last will is considered the deceased’s document, not the parties’ to bargain on. The probate Court has a duty to give effect to the testamentary intentions of testators.

Ultimately, Justice Hallen ordered a grant of probate of the 2015 Will to be issued, as requested. However, he indicated that the Court was justified in doing so because there was evidence which cast some doubt on the validity of the 2016 Will. If there had been insufficient evidence, his Honour was clear that he would have ordered the parties to have a full trial on the issue.

Those in the process of acting as an executor for the first time will quickly appreciate that the law governing probate is specialised and its language is technical. The rules and processes that exist in other types of litigation do not necessarily apply in the probate court. Cassarino v Cassarino is a useful reminder for all parties involved in probate proceedings that they cannot necessarily expect terms of settlement involving passing over a later will to be sanctioned without question.

This article was written by Michael Henley, Partner, Guy Moloney, Senior Associate and Jordan Lee, Graduate at Law.

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